Opinionhttps://www.lawyersalliance.com.auen-us/opinionCopyright 2019 Australian Lawyers Allianceenquiries@lawyersalliance.com.auSB4: http://www.ivt.com.au/web-development/content-management/advanced-cms-platform60Thu, 21 Feb 2019 00:00:00 +1100Gender dysphoria in Australia: The judicial response in Re Kelvin<p>In the case of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/258.html" target="_blank"><em>Re Kelvin</em></a><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span> (<em>Kelvin</em>), the Full Family Court of Australia was again required to consider what role the courts should have in deciding whether minors with gender dysphoria can commence hormone therapy. In what has been described as a landmark case, adolescents are no longer required to obtain court approval to undergo treatment where they have the permission of their parents and treating doctors.</p>
<h4><strong><span style="font-size:18px;">Kelvin&#39;s story</span></strong></h4>
<p>Kelvin was born with female genitalia at birth. Kelvin identified with transgender concepts at age 9, and by the age of 13 began to identify publicly as male. Since 2015, Kelvin has attended a suite of medical practitioners and counsellors and was ultimately diagnosed with gender dysphoria. Kelvin&rsquo;s transition had the support of both his parents, with his father filing the initiating application on 25 January 2017.<span style="font-size:10px;"><a href="#_edn2" name="_ednref2" title="">[2]</a></span></p>
<p>At the time of filing the initiating application, Kelvin had not undergone stage 1 treatment and was experiencing female puberty. This, as well as Kelvin&rsquo;s history of struggles with identity and ultimately gender dysphoria, resulted in him living with anxiety and depression and had led to self-harm. The initiating application sought to allow Kevin access to stage 2 treatment with the support of Kelvin&rsquo;s treating doctors.<span style="font-size:10px;"><a href="#_edn3" name="_ednref3" title="">[3]</a></span></p>
<p>It was submitted that Kelvin&rsquo;s overall health and wellbeing would deteriorate if access to stage 2 treatment was denied. Without treatment, Kelvin would continue to experience social isolation and frustration, and ongoing disgust with his body. These were noted as triggers for suicide attempts.<span style="font-size:10px;"><a href="#_edn4" name="_ednref4" title="">[4]</a></span></p>
<h4><span style="font-size:18px;"><strong>Transgender and gender dysphoria</strong></span></h4>
<p>&lsquo;Transgender&rsquo; is a term that applies to individuals whose gender identity, either transiently or persistently, does not match their biological sex at birth. A person who identifies as transgender is not necessarily gender dysphoric although all people with gender dysphoria are transgender. Gender dysphoria is a medical condition where a child does not identify with their biological sex.</p>
<h4><span style="font-size:16px;">Diagnosis of gender dysphoria</span></h4>
<p>Diagnosis of gender dysphoria is governed by the American Psychiatric Association&rsquo;s <em>Diagnostic and Statistical Manual of Mental Disorders</em> (DSM-5).<span style="font-size:10px;"><a href="#_edn5" name="_ednref5" title="">[5]</a></span></p>
<p>Symptoms of gender dysphoria manifest at different developmental stages, but intensify during puberty. To make a diagnosis of gender dysphoria in adolescent or adult patients, the person must exhibit at least two of the following criteria for at least a six-month period, and it must cause them <em>significant distress</em>:</p>
<ul><li>a significant difference between their own experienced gender and their secondary sexual characteristics;</li>
<li>a strong desire to be rid of their secondary sexual characteristics or prevent their development;</li>
<li>wanting secondary sexual characteristics of the opposite gender;</li>
<li>wanting to be treated as the other gender; and/or</li>
<li>a strong belief that they have the feelings/reactions of the opposite gender.<span style="font-size:10px;"><a href="#_edn6" name="_ednref6" title="">[6]</a></span></li>
</ul>
<h4><span style="font-size:16px;">Treatment for gender dysphoria</span></h4>
<p>Treatment for gender dysphoria involves two stages of hormonal therapy, accompanied by psychological treatment. Stage 1 treatment involves the provision of medication to prevent the onset of puberty in the child&#39;s biological sex. Stage 1 treatment is reversible. Stage 1 treatment may be commenced by children between the ages of 10 and 13. Stage 2 treatment comprises hormone treatment to encourage the development of physical characteristics in the sex with which the child identifies. Stage 2 treatment is considered to be irreversible. Stage 2 treatment is generally available once a person has reached approximately 16 years of age.</p>
<p>In conjunction with stage 1 and stage 2 treatment, some adolescents with gender dysphoria may undergo a mastectomy (also referred to as &lsquo;top surgery&rsquo;). A person may undergo gender reassignment surgery once they reach 18 years of age. Gender reassignment surgery will not be considered for a person under 18 years of age. Top surgery and gender reassignment surgery are sometimes referred to as stage 3 treatment. It has been suggested that early treatment for gender dysphoria optimises psychological and social development.<span style="font-size:10px;"><a href="#_edn7" name="_ednref7" title="">[7]</a></span></p>
<h4><span style="font-size:18px;"><strong>Gender dysphoria in children and adolescents: Jurisprudence in Australia</strong></span></h4>
<p>In 2004, the Family Court of Australia in the case of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2004/297.html" target="_blank"><em>Re Alex: Treatment of Gender Identity Dysphoria </em>(<em>Re Alex</em>)</a><span style="font-size:10px;"><a href="#_edn8" name="_ednref8" title="">[8]</a></span> determined that treatment for gender identity disorder (as it was known then) was non-therapeutic and fell outside the boundaries of parental consent. Specifically, the Court held that both stage 1 and 2 treatments were &lsquo;special medical procedures&rsquo; that, despite the desires of the person to undergo the treatment or the permission of parents or legal guardians and support of treating medical practitioners, required court approval before they could be undertaken.<span style="font-size:10px;"><a href="#_edn9" name="_ednref9" title="">[9]</a></span> In 2009, <em>Re Alex</em> was again before the Family Court of Australia. On that occasion, the Court found that it was in Alex&rsquo;s best interests to have a double mastectomy and approved the surgery.</p>
<p>In 2013, in <em><a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2013/518.html" target="_blank">Re Lucy (Gender Dysphoria)</a>,</em><span style="font-size:10px;"><a href="#_edn10" name="_ednref10" title="">[10]</a></span> the Family Court of Australia held that &lsquo;treatment for gender dysphoria is therapeutic treatment because it is administered primarily to ameliorate a psychiatric disorder&rsquo;,<span style="font-size:10px;"><a href="#_edn11" name="_ednref11" title="">[11]</a></span> a marked shift from how the treatment was classified in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2004/297.html" target="_blank"><em>Re Alex</em></a>. The Court held that its approval was not required for stage 1 treatment.</p>
<p>Shortly after the judgment was delivered in the case of <em>Re Lucy</em>, the Family Court of Australia echoed that judgment in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2013/563.html" target="_blank"><em>Re Sam and Terry</em> (<em>Gender Dysphoria</em>)</a>.<span style="font-size:10px;"><a href="#_edn12" name="_ednref12" title="">[12]</a></span> In <em><a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2013/563.html" target="_blank">Re Sam and Terry</a>, </em>the Court held that court approval was not required for stage 1 treatment and that parental consent was sufficient. However, court approval would be required for stage 2 treatment.</p>
<p>In 2013, in the case of <em><a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2013/110.html" target="_blank">Re Jamie</a>,</em><span style="font-size:10px;"><a href="#_edn13" name="_ednref13" title="">[13]</a></span> the Full Family Court of Australia affirmed the position adopted in <em><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2013/518.html" target="_blank">Re Lucy</a> </em>that parents are permitted to consent to stage 1 treatment for gender dysphoria, while court approval is required for stage 2 treatment. While the Full Court appeared to accept that both stage 1 and stage 2 treatment could be characterised as &lsquo;therapeutic&rsquo;, a key consideration in the Court&rsquo;s distinction between the approval process for stage 1 and stage 2 treatment was its view that stage 1 treatment carried a low risk of error from misdiagnosis, and that the consequences for the child were &lsquo;ameliorated or alleviated&rsquo; in circumstances where stage 1 treatment is reversible.<span style="font-size:10px;"><a href="#_edn14" name="_ednref14" title="">[14]</a></span> In contrast, the Court formed the view that there would be irreversible effects and significant risks to a child if a wrong decision was made in relation to stage 2 treatment.</p>
<p>Importantly, the Court held that a &lsquo;Gillick competent&rsquo; minor can consent to stage 2 treatment. The test to determine whether a child has the capacity and competence to consent to treatment comes from <a href="http://www.bailii.org/uk/cases/UKHL/1985/7.html" target="_blank"><em>Gillick v West Norfolk and Wisbech Area Health Authority</em>,</a><span style="font-size:10px;"><a href="#_edn15" name="_ednref15" title="">[15]</a></span> where it was held that a child is deemed to have the capacity to give informed consent when he/she &lsquo;achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed&rsquo;.<span style="font-size:10px;"><a href="#_edn16" name="_ednref16" title="">[16]</a></span> However, the Court imposed a requirement that a court application must first be made for determination that a child is Gillick competent.</p>
<p>The judgment in <em><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2013/110.html" target="_blank">Re Jamie</a> </em>was at the time viewed as a positive one because, despite the imposition of the requirement that Gillick competency be determined by the courts, it was said to allow better access to treatment for transgender adolescents.</p>
<h4><span style="font-size:18px;"><strong><em>Kelvin</em>: A turning point for adolescents with gender dysphoria</strong></span></h4>
<p>In the decision of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/258.html" target="_blank"><em>Kelvin</em></a>, the majority of the Full Family Court of Australia held that adolescents with gender dysphoria who have parental consent and medical support no longer require court approval or a determination that they are Gillick competent to undergo stage 2 treatment. Thackeray, Strickland and Murphy JJ found that it was &lsquo;unnecessary and indeed inappropriate&rsquo; for the Court to find that the decision in <em><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2013/110.html" target="_blank">Re Jamie</a> </em>was &lsquo;wrong&rsquo; or that it ought to be &lsquo;overruled&rsquo;. Rather, their Honours reasoned that a departure from the decision in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2013/110.html" target="_blank"><em>Re Jamie</em></a> is justified, as it no longer accords with the current medical knowledge and that &lsquo;the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment&rsquo;.<span style="font-size:10px;"><a href="#_edn17" name="_ednref17" title="">[17]</a></span></p>
<p>In reaching its decision, the majority of the Court made it clear that stage 2 treatment &lsquo;can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority&rsquo;.<span style="font-size:10px;"><a href="#_edn18" name="_ednref18" title="">[18]</a></span> The Court noted that the decision in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2013/110.html" target="_blank"><em>Re Jamie</em></a> would likely have differed if it were made today.<span style="font-size:10px;"><a href="#_edn19" name="_ednref19" title="">[19]</a></span></p>
<p>It is important to note that where parental consent is not forthcoming or available (for example, where a child is under the care of a state government department), or where there is disagreement between the parents or between the medical professionals as to whether the treatment should be administered, the Court retains jurisdiction and power to address those issues.<span style="font-size:10px;"><a href="#_edn20" name="_ednref20" title="">[20]</a></span></p>
<h4><strong><span style="font-size:18px;">Conclusion</span></strong></h4>
<p>Prior to the decision in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/258.html" target="_blank"><em>Kelvin</em></a>, Australia was the only country in the world that required transgender adolescents to obtain the approval of the court to access stage 2 treatment. This decision marks the court catching up with the medical profession on the treatment of gender dysphoria. The decision in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/258.html" target="_blank"><em>Kelvin</em></a> has been welcomed by transgender and children&rsquo;s advocates, who believe it &lsquo;will improve human rights protection for young transgender people&rsquo;<span style="font-size:10px;"><a href="#_edn21" name="_ednref21" title="">[21]</a></span> and &lsquo;will have a significant, positive impact on the health and wellbeing of trans young people&rsquo;<span style="font-size:10px;"><a href="#_edn22" name="_ednref22" title="">[22]</a></span> in Australia.</p>
<p><em>This is an edited version of an article first&nbsp;published in the Mar/Apr&nbsp;2018&nbsp;edition of Precedent&nbsp;focusing on legal capacity.</em></p>
<div><p><img alt="" src="/sb_cache/blog/id/561/f/Greg McAllister.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 124px; height: 130px;" /></p>
<p><strong>Greg McAllister</strong> is a lawyer at Carroll &amp; O&rsquo;Dea Lawyers, Sydney. The author wishes to thank Lara Piercy, formerly of Carroll &amp; O&rsquo;Dea Lawyers, Sydney.</p>
<p>&nbsp;</p>
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<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
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<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> [2017] Fam CAFC 258.</p>
</div>
<div id="edn2"><p><a href="#_ednref2" name="_edn2" title="">[2]</a> <em>Kelvin</em>, 24-36.</p>
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<div id="edn3"><p><a href="#_ednref3" name="_edn3" title="">[3</a>]<em> </em>Ibid, [37], [38]-[43].</p>
</div>
<div id="edn4"><p><a href="#_ednref4" name="_edn4" title="">[4]</a> Ibid, [48]-[50].</p>
</div>
<div id="edn5"><p><a href="#_ednref5" name="_edn5" title="">[5]</a> 5th ed, American Psychiatric Association Publishing, USA, 2013.</p>
</div>
<div id="edn6"><p><a href="#_ednref6" name="_edn6" title="">[6]</a> While there is some similarity between the criteria for adolescents (and adults) and that for children, the DSM criteria in children requires six months of significant distress or impairment with six out of eight criteria being met. &nbsp;</p>
</div>
<div id="edn7"><p><a href="#_ednref7" name="_edn7" title="">[7]</a> M Smith, QUT Australian Centre for Health Law Research, &lsquo;Treatment for Childhood Gender Dysphoria and the Law In Australia&rsquo; (September 2016) <https: 0010="" 555553="" __data="" assets="" cms.qut.edu.au="" gender-dysphoria-study-achlr.pdf="" pdf_file="">.</https:></p>
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<div id="edn8"><p><a href="#_ednref8" name="_edn8" title="">[8]</a> [2004] FamCA 297.</p>
</div>
<div id="edn9"><p><a href="#_ednref9" name="_edn9" title="">[9]</a> Note that the Court can authorise treatment only if medical opinion that the treatment is in the child&rsquo;s best interests is present. Medical consent was obtained for each of the cases presented in this article.</p>
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<div id="edn10"><p><a href="#_ednref10" name="_edn10" title="">[10]</a> [2013] FamCA 518.</p>
</div>
<div id="edn11"><p><a href="#_ednref11" name="_edn11" title="">[11]</a> Ibid, [99].</p>
</div>
<div id="edn12"><p><a href="#_ednref12" name="_edn12" title="">[12]</a> [2013] FamCA 563.</p>
</div>
<div id="edn13"><p><a href="#_ednref13" name="_edn13" title="">[13]</a> [2013] FamCACF 110.</p>
</div>
<div id="edn14"><p><a href="#_ednref14" name="_edn14" title="">[14]</a> Ibid, [85].</p>
</div>
<div id="edn15"><p><a href="#_ednref15" name="_edn15" title="">[15]</a> [1986] AC 112.</p>
</div>
<div id="edn16"><p><a href="#_ednref16" name="_edn16" title="">[16]</a> Ibid, 183-4 (per Scarman LJ). The principle and test for &lsquo;Gillick competence&rsquo; was made law in Australia in <em>Department of Health &amp; Community Services v JWB &amp; SMB</em> <em>(Marion&rsquo;s case),</em> 238 (per Mason CJ and Dawson, Toohey and Gaudron JJ).</p>
</div>
<div id="edn17"><p><a href="#_ednref17" name="_edn17" title="">[17]</a> <em>Kelvin</em>, [162] and [177].</p>
</div>
<div id="edn18"><p><a href="#_ednref18" name="_edn18" title="">[18]</a> Ibid, 164].</p>
</div>
<div id="edn19"><p><a href="#_ednref19" name="_edn19" title="">[19]</a> Ibid, [164] and [165].</p>
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<div id="edn20"><p><a href="#_ednref20" name="_edn20" title="">[20]</a> Ibid, [133].</p>
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<div id="edn21"><p><a href="#_ednref21" name="_edn21" title="">[21]</a> Australian Human Rights Commission, <em>Commission Welcomes Re Kelvin Decision </em>(30 November 2017)<em> &lt;</em>https://www.humanrights.gov.au/news/stories/commission-welcomes-re-kelvin-decision&gt;.</p>
</div>
<div id="edn22"><p><a href="#_ednref22" name="_edn22" title="">[22]</a> Ibid.</p>
</div>
</div>
https://www.lawyersalliance.com.au/opinion/gender-dysphoria-in-australia-the-judicial-response-in-re-kelvinhttps://www.lawyersalliance.com.au/opinion/gender-dysphoria-in-australia-the-judicial-response-in-re-kelvinThu, 07 Feb 2019 00:00:00 +1100Are men still determining women's human rights? (part 2)<p>Having finally received Australia&rsquo;s belated report in July 2018, the UN&rsquo;s Committee on the Elimination of Discrimination against Women (CEDAW) rebuked the Australian government over its failure to protect women from violence. The Committee&rsquo;s Concluding Observations<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span> refer to the financial cuts to women&rsquo;s refuges, welfare payments and legal services and express concern about the impact of men&rsquo;s rights activism on the functioning of the Family Court.<span style="font-size:10px;"><a href="#_edn2" name="_ednref2" title="">[2]</a></span> The Committee&rsquo;s main commendation seemed to be that Australian governments had at least admitted that they were failing to prevent domestic violence. <span style="font-size:10px;"><a href="#_edn3" name="_ednref3" title="">[3]</a></span></p>
<p>However, beyond this, there are no further consequences flowing from Australia&rsquo;s failures to meet its international obligations under CEDAW. The main value of the Committee is its ability to shame state parties into compliance, since its determinations are ultimately unenforceable. Therefore, coverage and public awareness of the process is essential for it to be an effective tool. Unfortunately, even within women&rsquo;s services there is very little awareness of CEDAW or the reporting process.</p>
<p>The CEDAW Committee encourages the community sector (or NGOs) to follow its work and to provide reports so that it can gather alternative views to those provided by governments. In Australia, this shadow reporting process is co-ordinated to some extent by the Equality Rights Alliance (ERA) which describes itself as &lsquo;Australia&rsquo;s largest network advocating for women&rsquo;s equality, women&rsquo;s leadership and recognition of women&rsquo;s diversity&rsquo;.<span style="font-size:10px;"><a href="#_edn4" name="_ednref4" title="">[4]</a></span> However, although ERA membership consists of &lsquo;61 organisations with an interest in advancing women&rsquo;s equality&rsquo;, its name is not immediately recognisable and does not even include the word &lsquo;women&rsquo;. As a project of the YWCA, with limited funding from Commonwealth Government&rsquo;s Office for Women,<span style="font-size:10px;"><a href="#_edn5" name="_ednref5" title="">[5]</a></span> the ERA has a variety of constraints on its ability to advocate loudly for the rights of women. The government did not even provide the ERA (or any other women&rsquo;s advocacy body) with sufficient funding to send a delegate to represent Australia at the CEDAW session.</p>
<p>Most of the NGO delegates who managed the trip to Geneva were either self-funded or drew upon the resources of community-based organisations already strapped for cash. Most of them missed the training that preceded the actual session and, with more than a dozen delegates in attendance having to share a ten-minute speaking spot, only a handful of delegates had an opportunity to address the Committee in the main session. As a result, certain positions were given priority, while others were effectively sidelined. For example, concerns about the participation by Australians in exploitative international adoption and surrogacy arrangements did not receive a mention.</p>
<p>At least one delegate from Australia, and from each of the other countries reporting to CEDAW at this time, was funded by the International Lesbian and Gay Association (ILGA), to advance the priorities of this organisation. For some countries this ILGA-funded delegate was the only individual representing the NGO sector and consequently had a full ten minutes to address the Committee, therefore arguably having a disproportionate influence on the Committee&rsquo;s considerations.</p>
<p>On divisive issues such as surrogacy, adoption, prostitution and the legal recognition of sex upon self-identification, the agenda being advanced by some gay rights organisations is arguably at odds with the fundamental human rights of women.<span style="font-size:10px;"><a href="#_edn6" name="_ednref6" title="">[6]</a></span> Typically, calls to make each of these easier to access and free from stigma disregard the scope this provides for the exploitation and endangerment of women and their children. This has resulted in the formation of a campaign in the UK by disenchanted lesbians under the banner #GetTheLOut which has seen activists taking steps to disrupt traditional LGBTI celebrations to draw attention to their concerns, which have been marginalised within this community.<span style="font-size:10px;"><a href="#_edn7" name="_ednref7" title="">[7]</a></span></p>
<p>Unfortunately, women who voice opposition along these lines expose themselves to ostracism, de-platforming and worse. In remaining true to the vision of second wave feminism, these women are now being lumped together with the far right and Christian evangelists despite their pedigree of breaking down gender stereotypes, fighting for sexual and reproductive freedoms, and advocating for services and spaces that preserve the safety and autonomy of women.</p>
<p>The achievement in 2017 of same sex marriage in Australia constitutes an example of a well-organised and well-funded campaign for social change. In contrast, in the same year the campaign to finally decriminalise abortion in NSW was a non-event of which very few women were aware. The churches used their considerable resources to spread misinformation and lobby politicians to vote against this attempt to update archaic laws, and ultimately the Bill was defeated. As a result, the most disadvantaged and vulnerable women in NSW are still impeded in their capacity to access termination services that continue to be available only privately rather than accessible through the public health system. This is an example of how women&rsquo;s causes are underfunded and sidelined, and consequently fail to enter the public consciousness and achieve the momentum and critical mass of support needed for success.</p>
<p>With women controlling only an estimated 1% of global wealth,<span style="font-size:10px;"><a href="#_edn8" name="_ednref8" title="">[8]</a></span> there is also a very real risk that our human rights agenda will continue to be dictated by men. The churches, the male gay rights lobby and men&rsquo;s rights activism are all better organised and better-funded movements than feminism and each are effectively working to dismantle the gains of the women&rsquo;s liberation movement. It is essential that women find a way of influencing the women&rsquo;s international human rights agenda rather than allowing it to be controlled by those with funding, a voice and different priorities: namely, men.</p>
<p><em>Read part 1 of this article <a href="https://www.lawyersalliance.com.au/opinion/are-men-still-determining-womens-human-rights-part-1" target="_blank">here</a>.</em></p>
<p><font size="1"><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/501/f/Anna Kerr pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 141px;" /></strong></span></font></p>
<p><font size="1"><span style="font-size:14px;"><strong>Anna Kerr</strong> is the Founder and Principal of the <a href="https://feministlegal.org/" target="_blank">Feminist Legal Clinic</a>, Sydney, which works to advance the cause of feminism and champion the human rights of women and girls by providing legal support to feminist organisations, groups and services and the women who access them.&nbsp;</span></font></p>
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<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
<div><p>&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> Committee on the Elimination of Discrimination Against Women, <em>Concluding Observations on the Eighth Periodic Report of Australia , </em>CEDAW /C/AUS/CO/8 (20 July 2018).</p>
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<div id="edn2"><p><a href="#_ednref2" name="_edn2" title="">[2]</a> M Nawaz and T Deegan, &lsquo;UN delivers strong rebuke to Australian Government on women&rsquo;s rights&rsquo;, <em>The Conversation </em>(online), 24 July 2018, &lt;<a href="https://theconversation.com/un-delivers-strong-rebuke-to-australian-government-on-womens-rights-100089">https://theconversation.com/un-delivers-strong-rebuke-to-australian-government-on-womens-rights-100089</a>&gt;.</p>
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<div id="edn3"><p><a href="#_ednref3" name="_edn3" title="">[3]</a> SBS, &lsquo;UN grills Australia on multiple failures to protect women against violence&rsquo;, <em>The Feed </em>(online), 6 July 2018, &lt;<a href="https://www.sbs.com.au/news/the-feed/un-grills-australia-on-multiple-failures-to-protect-women-against-violence">https://www.sbs.com.au/news/the-feed/un-grills-australia-on-multiple-failures-to-protect-women-against-violence</a>&gt;.</p>
</div>
<div id="edn4"><p><a href="#_ednref4" name="_edn4" title="">[4]</a> ERA, <em>Who We Are </em>(2016)<em> &lt;</em><a href="https://www.equalityrightsalliance.org.au/">https://www.equalityrightsalliance.org.au/</a>&gt;.</p>
</div>
<div id="edn5"><p><a href="#_ednref5" name="_edn5" title="">[5]</a> Department of the Prime Minister Cabinet, &lsquo;Current initiatives,&rsquo; Office for Women (2018) &lt;<a href="https://www.pmc.gov.au/office-women">https://www.pmc.gov.au/office-women</a>&gt;.</p>
</div>
<div id="edn6"><p><a href="#_ednref6" name="_edn6" title="">[6]</a> Fair Play for Women, &lsquo;Survivors letter&rsquo; (2017) &lt;<a href="https://fairplayforwomen.com/wp-content/uploads/2018/07/Survivors-letter.pdf">https://fairplayforwomen.com/wp-content/uploads/2018/07/Survivors-letter.pdf</a>&gt;.</p>
</div>
<div id="edn7"><p><a href="#_ednref7" name="_edn7" title="">[7]</a> M Murphy, &lsquo;Interview: Angela C. Wild of #GetTheLOut on Pride in London and lesbian erasure&rsquo;, <em>Feminist Current </em>(online), 17 July 2018, &lt;<a href="https://www.feministcurrent.com/2018/07/17/interview-angela-c-wild-getthelout-pride-london-lesbian-erasure/">https://www.feministcurrent.com/2018/07/17/interview-angela-c-wild-getthelout-pride-london-lesbian-erasure/</a>&gt;.</p>
</div>
<div id="edn8"><p><a href="#_ednref8" name="_edn8" title="">[8]</a> S Reddy, &lsquo;Women hold just one percent of the world&rsquo;s wealth: World Bank&rsquo;, <em>Huffington Post </em>(online), 19 September 2011, &lt;<a href="https://www.huffingtonpost.com/2011/09/19/women-make-only-1-percent-wealth_n_969439.html">https://www.huffingtonpost.com/2011/09/19/women-make-only-1-percent-wealth_n_969439.html</a>&gt;.</p>
<p>&nbsp;</p>
</div>
</div>
https://www.lawyersalliance.com.au/opinion/are-men-still-determining-womens-human-rights-part-2https://www.lawyersalliance.com.au/opinion/are-men-still-determining-womens-human-rights-part-2Thu, 31 Jan 2019 00:00:00 +1100Are men still determining women's human rights? (part 1)<p>Aside from the starring role of Eleanor Roosevelt, the other members of the Commission tasked with framing the <em><a href="http://www.un.org/en/universal-declaration-human-rights/" target="_blank">Universal Declaration of Human Rights</a></em> (UDHR) were male.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span> The document was originally drafted to open: &lsquo;All men are brothers&rsquo; and referred throughout to the rights of men. It was the intervention of Jessie Street, Australia&rsquo;s only woman delegate to the United Nations, that resulted in Article 1 instead reading: &lsquo;All human beings are born free and equal in dignity and rights.&#39;<a href="#_edn2" name="_ednref2" title=""><span style="font-size:10px;">[2</span>]</a></p>
<p>Unfortunately, despite Street&rsquo;s efforts to rid the declaration of its sexist language, she was only partially successful and to this day, this most revered and authoritative document still refers to &lsquo;mankind&rsquo;, &lsquo;man&rsquo;, &lsquo;the spirit of brotherhood&rsquo; and makes exclusive use of the male pronoun. The failure to provide acknowledgement of women throughout the document undermines the provisions declaring that rights should be enjoyed without discrimination.</p>
<p>Street&rsquo;s attempt to establish a right for women to be free from violence was also unsuccessful, while her argument for greater recognition of the rights of motherhood resulted in a rather paternalistic compromise with the drafting of Article 25, which groups mothers with children as needing &lsquo;special care and assistance&rsquo;. This is a far cry from recognising the critical bond between mothers and their children, and the right of mothers not to be separated from their offspring.<span style="font-size:10px;"><a href="#_edn3" name="_ednref3" title="">[3]</a></span> Article 25 and other pro-family provisions were primarily the outcome of religious influence rather than lobbying by feminists.<span style="font-size:10px;"><a href="#_edn4" name="_ednref4" title="">[4]</a></span> Unfortunately, the deficiencies that Street was unable to correct in 1948 continue to impede the advancement of women&rsquo;s human rights.</p>
<p>The UN<a href="https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx" target="_blank"><em> Convention on the Elimination of All Forms of Discrimination against Women</em></a> (CEDAW)<span style="font-size:10px;"><a href="#_edn5" name="_ednref5" title="">[5]</a></span> was instituted in 1981 and is the key international human rights document that seeks to articulate and uphold the human rights of women. It addresses women&rsquo;s rights within political, civil, cultural, economic, and social life. However, it still fails to incorporate a right for women to be free from male violence. There have since been piecemeal efforts to ameliorate this oversight with the CEDAW Committee issuing General Recommendations 12 and 19 which aim to bring gender-based violence within the purview of the Convention.<span style="font-size:10px;"><a href="#_edn6" name="_ednref6" title="">[6]</a></span> Furthermore, the introduction of an <em><a href="http://www.un.org/documents/ga/res/48/a48r104.htm" target="_blank">International Declaration on the Elimination of Violence against Women</a></em><em> </em>in 1993 also attempts to overcome this shortcoming. However, none of these measures has as much recognition and force as a convention itself.<span style="font-size:10px;"><a href="#_edn7" name="_ednref7" title="">[7]</a></span> As a result, there are continuing calls for a specific treaty framed to combat violence against women.<span style="font-size:10px;"><a href="#_edn8" name="_ednref8" title="">[8]</a></span></p>
<p>CEDAW also provides inadequate recognition of maternal rights, since it provides only that women should have equal rights with men in relation to the number and spacing of children and the rights and guardianship in respect to those children. There is a failure to acknowledge the greater physical, psychological and economic impact that childbearing has on women and to ensure that this reality translates into additional human rights attaching to motherhood. Rather, the critical bond between a mother and child is disregarded by international human rights law, which instead enshrines &lsquo;family&rsquo;, a difficult construct to define, as the fundamental unit of society.</p>
<p>This blind spot had a significant impact on Australian legislation, such as our <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fla1975114/" target="_blank"><em>Family Law Act</em> <em>1975 </em>(Cth) </a>which is framed to protect marriage, the family and the &lsquo;best interests of the child&rsquo; but fails to acknowledge the distinct human right of mothers to be supported to retain care of their offspring.<span style="font-size:10px;"><a href="#_edn9" name="_ednref9" title="">[9]</a></span> This has left the way open for child removal policies and the promotion of adoption and surrogacy, and for abuse and manipulation of the family law system by male perpetrators.<span style="font-size:10px;"><a href="#_edn10" name="_ednref10" title="">[10]</a></span> It has established a world view in which having a relationship with the biological mother is regarded as superfluous to a child&rsquo;s needs.<span style="font-size:10px;"><a href="#_edn11" name="_ednref11" title="">[11]</a></span></p>
<p>Despite its shortcomings, CEDAW is the main human rights treaty for women.<span style="font-size:10px;"><a href="#_edn12" name="_ednref12" title="">[12]</a></span> It has been ratified by 189 states, with the USA being a conspicuous absentee from a list which includes every other western democracy. However, very few Australians, including lawyers, are familiar with the treaty. Countries that are a party to CEDAW must submit reports to the CEDAW Committee at least every four years detailing what measures they have taken to comply with their obligations under the Convention. These reports are scrutinised by the CEDAW Committee which is made up of 23 elected members who serve in their personal capacity as &lsquo;gender experts&rsquo;.<span style="font-size:10px;"><a href="#_edn13" name="_ednref13" title="">[13]</a></span></p>
<p>However, there is a very low public awareness of Australia&rsquo;s regular reporting obligations in relation to international human rights conventions generally, and therefore limited commentary on Australia&rsquo;s tardiness in meeting its obligations under CEDAW. This explains why there was no outcry when Australia effectively skipped lodging its four-yearly report in 2014. Few are aware that Australia&rsquo;s record on women&rsquo;s rights was reviewed for the first time since 2010 in Geneva on 2-3 July 2018. <span style="font-size:10px;"><a href="#_edn14" name="_ednref14" title="">[14]</a></span> Considering that the CEDAW treaty body had little positive feedback about Australia&rsquo;s progress over the intervening eight years, it is not surprising that the government failed to promote this event.</p>
<p>Part 2 of this article will discuss how the government&rsquo;s failures have undermined the human rights of Australian women.</p>
<p><font size="1"><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/501/f/Anna Kerr pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 141px;" /></strong></span></font></p>
<p><font size="1"><span style="font-size:14px;"><strong>Anna Kerr</strong> is the Founder and Principal of the <a href="https://feministlegal.org/" target="_blank">Feminist Legal Clinic</a>, Sydney, which works to advance the cause of feminism and champion the human rights of women and girls by providing legal support to feminist organisations, groups and services and the women who access them.&nbsp;</span></font></p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
<div>&nbsp;
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> <em>Universal Declaration of Human Rights</em> (UDHR) 993 UNTS 3 (entered into force 10 December 1948); UN, &lsquo;The drafters of the Universal Declaration of Human Rights,&rsquo; <em>Universal Declaration of Human Rights, </em>&lt;<a href="http://www.un.org/en/sections/universal-declaration/drafters-universal-declaration-human-rights/index.html">http://www.un.org/en/sections/universal-declaration/drafters-universal-declaration-human-rights/index.html</a>&gt;; &lt;<a href="https://research.un.org/en/undhr/draftingcommittee">https://research.un.org/en/undhr/draftingcommittee</a>&gt;.</p>
</div>
<div id="edn2"><p><a href="#_ednref2" name="_edn2" title="">[2]</a> E Evatt, &lsquo;Jessie Street and human rights,&rsquo; <em>Evatt Foundation </em>(18 April 2018) &lt;<a href="https://evatt.org.au/papers/jessie-street-human-rights.html">https://evatt.org.au/papers/jessie-street-human-rights.html</a>&gt;.</p>
</div>
<div id="edn3"><p><a href="#_ednref3" name="_edn3" title="">[3]</a> A M Payne, <em>Untold suffering? Motherhood and the Stolen Generations </em>(Phd Thesis, University of Technology Sydney, 2016) 31.</p>
</div>
<div id="edn4"><p><a href="#_ednref4" name="_edn4" title="">[4]</a> A Carlson, &lsquo;Globalizing family values&rsquo; (Speech delivered at the Charismatic Leader&rsquo;s Fellowship, Jacksonville, Florida, 12 January 2004, &lt;<a href="https://archive.is/20120525091122/http:/www.profam.org/docs/acc/thc.acc.globalizing.040112.htm">https://archive.is/20120525091122/http://www.profam.org/docs/acc/thc.acc.globalizing.040112.htm</a>&gt;.</p>
</div>
<div id="edn5"><p><a href="#_ednref5" name="_edn5" title="">[5]</a> <em>Convention on the Elimination of All Forms of Discrimination Against Women</em> (CEDAW) opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).</p>
</div>
<div id="edn6"><p><a href="#_ednref6" name="_edn6" title="">[6]</a> Ibid, General Recommendations 12, 19, <https: cedaw="" en="" hrbodies="" pages="" recommendations.aspx="" www.ohchr.org="">.</https:></p>
</div>
<div id="edn7"><p><a href="#_ednref7" name="_edn7" title="">[7]</a> <em>Declaration on the Elimination of Violence against Women</em> G.A. res. 48/104 (entered into force 20 December 1993).</p>
</div>
<div id="edn8"><p><a href="#_ednref8" name="_edn8" title="">[8]</a> R McQuigg, &lsquo;Why the world needs a UN treaty to combat violence against&nbsp;women&rsquo;, <em>The Conversation </em>(online), 8 March 2016, &lt;<a href="https://theconversation.com/why-the-world-needs-a-un-treaty-to-combat-violence-against-women-53582">https://theconversation.com/why-the-world-needs-a-un-treaty-to-combat-violence-against-women-53582</a>&gt;.</p>
</div>
<div id="edn9"><p><a href="#_ednref9" name="_edn9" title="">[9]</a>&nbsp; <em>Family Law Act 1975</em> (Cth); Australian Law Reform Commission, <em>Family Violence: A National Legal Response, </em>Report No. 114 (2010) Ch&nbsp;4.</p>
</div>
<div id="edn10"><p><a href="#_ednref10" name="_edn10" title="">[10]</a> R Olding, &lsquo;Family Court ruling: Violent father given sole custody of child&rsquo;, <em>Sydney Morning Herald </em>(online), 17 April 2016, &lt;<u><a href="https://www.smh.com.au/national/nsw/family-court-ruling-violent-father-given-sole-custody-of-child-20160405-gnz3pr.html">https://www.smh.com.au/national/nsw/family-court-ruling-violent-father-given-sole-custody-of-child-20160405-gnz3pr.html</a></u>&gt;; B Fehlberg, &lsquo;Reports show shared care needs fixing&rsquo;, <em>The Sydney Morning Herald </em>(online), 3 February 2010, &lt;<u><a href="https://www.smh.com.au/politics/federal/reports-show-shared-care-needs-fixing-20100203-nd7a.html">https://www.smh.com.au/politics/federal/reports-show-shared-care-needs-fixing-20100203-nd7a.html</a></u>&gt;.</p>
</div>
<div id="edn11"><p><a href="#_ednref11" name="_edn11" title="">[11]</a> B Farmer, &#39;Judge to decide whether baby can be first in UK history to be born without a mother in landmark trans rights case&rsquo;, <em>Independent </em>(online), 30 September 2018, &lt;<a href="https://www.independent.co.uk/news/uk/home-news/transgender-man-baby-birth-certificate-mother-trans-rights-landmark-case-family-court-a8562021.html">https://www.independent.co.uk/news/uk/home-news/transgender-man-baby-birth-certificate-mother-trans-rights-landmark-case-family-court-a8562021.html</a>&gt;.</p>
</div>
<div id="edn12"><p><a href="#_ednref12" name="_edn12" title="">[12]</a> Human Rights and Equal Opportunity Commission, <em>Women&rsquo;s Rights: United Nations Convention on the Elimination of all Forms of Discrimination Against Women CEDAW </em>(2008).</p>
</div>
<div id="edn13"><p><a href="#_ednref13" name="_edn13" title="">[13]</a> Ibid.</p>
</div>
<div id="edn14"><p><a href="#_ednref14" name="_edn14" title="">[14]</a> M Nawaz and A Cody, &lsquo;UN set to review Australia&rsquo;s record on women&rsquo;s rights &ndash; and may find it wanting&rsquo;, <em>The Conversation </em>(online), 28 June 2018, &lt;<a href="https://theconversation.com/un-set-to-review-australias-record-on-womens-rights-and-may-find-it-wanting-98552">https://theconversation.com/un-set-to-review-australias-record-on-womens-rights-and-may-find-it-wanting-98552</a>&gt;.</p>
</div>
</div>
https://www.lawyersalliance.com.au/opinion/are-men-still-determining-womens-human-rights-part-1https://www.lawyersalliance.com.au/opinion/are-men-still-determining-womens-human-rights-part-1Thu, 24 Jan 2019 00:00:00 +1100Gig economy decision – Fair Work Commission finds delivery riders are employees<p>Technological innovation has led to the emergence of flexible work arrangements in the &lsquo;gig economy&rsquo;, also known as the &lsquo;share economy&rsquo; &ndash; where workers are typically engaged under a contract <em>for </em>services rather than a contract <em>of</em> service, usually via online platforms or apps.</p>
<p>Flexible work arrangements, which were once considered unconventional, have become prevalent in Australia&rsquo;s ever evolving economy, and this change is driving the expansion of how we characterise contracts of employment with regards to independent contractors.</p>
<p>Whether the people working for these gig economy businesses are employees or independent contractors is key to defining their rights and obligations in areas such as tax, superannuation and instances of dismissal.</p>
<p>Going to the very heart of this issue is the recent decision of the Fair Work Commission (FWC) which found that Mr Klooger, a food delivery worker engaged by Foodora, was an employee and therefore entitled to bring an unfair dismissal claim.</p>
<h4><strong><a href="https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc6836.htm" target="_blank"><em>Joshua Klooger v Foodora Australia Pty Ltd</em></a>: The facts</strong></h4>
<p>Joshua Klooger worked for Foodora for a number of years, delivering food to customers on a bicycle. Over time, the flat rate delivery payments received by Mr Klooger and other such workers had progressively reduced. Mr Klooger was subsequently dismissed for publicly talking about the declining working conditions and remuneration.</p>
<p>In order to decide whether Mr Klooger was unfairly dismissed, the FWC had first to decide whether it had jurisdiction to hear the application, as the law is ambiguous in relation to the status of gig workers as employees or independent contractors.</p>
<h4><strong>The decision</strong></h4>
<p>The FWC applied the multifactorial test from the High Court judgment in <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2001/44.html?stem=0&amp;synonyms=0&amp;query=title(Hollis%20and%20Vabu%20)" target="_blank"><em>Hollis v Vabu</em></a> to assess the nature of the relationship between Mr Klooger and Foodora.</p>
<ul><li><em>Control:</em> Not only was Mr Klooger required to wear Foodora&rsquo;s uniform and ride a bicycle with the company&rsquo;s branding, he was also told the geographical location in which he would make deliveries. Essential to the argument of control was Foodora&rsquo;s &lsquo;batch system&rsquo;, which ranked its workers&rsquo; performance and meant that better workers received better shifts. This ranking system meant that workers, in reality, were forced to take the shifts they were offered by Foodora and did not have the freedom to choose when and where they worked.</li>
<li><em>Contractual terms:</em> While the contract between Mr Klooger and Foodora was titled &lsquo;Independent Contractor Agreement&rsquo;, the terms were in a similar format to an employment contract (such as wearing Foodora branded clothing).</li>
<li><em>Subcontracting</em>: Employees cannot subcontract, so a crucial part of Foodora&rsquo;s argument was that Mr Klooger allowed other drivers to use his online profile to complete shifts. While this delegation did take place, it ultimately required the consent of Foodora.</li>
<li><em>Invoices:</em> Mr Klooger was given invoices for his approval and once he approved them he was paid by Foodora. Further, Foodora did not pay annual leave or sick leave entitlements.</li>
</ul>
<p>Having decided that Mr Klooger was an employee, the FWC also found his dismissal to be unfair and ordered Foodora to pay compensation.</p>
<p>The FWC followed the approach taken in <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2001/44.html?stem=0&amp;synonyms=0&amp;query=title(Hollis%20and%20Vabu%20)" target="_blank"><em>Hollis v Vabu</em></a>, in which couriers who delivered parcels and letters on bicycles were found to be employees of Crisis Couriers.</p>
<h4><strong>What does this mean for the gig economy?</strong></h4>
<p>The decision may appear to be a significant win for gig workers. However, it does not necessarily apply to other companies, nor does it tell us anything definitive about the position of delivery workers at companies with similar business models. Therefore, a worker found to be an employee within one model may be characterised only as an independent contractor within another. For instance, a 2017 FWC decision found that Uber delivery workers are not employees!</p>
<h4><strong>What next?</strong></h4>
<p>There is no doubt that this decision will empower unions and gig workers to take a tougher stance on businesses engaging gig workers as independent contractors. However, as significant as this decision is for the gig economy, it is quite unremarkable. The FWC has essentially restated and reapplied principles of law from well-known cases and has not attempted to provide us with a definition of an employee in the current gig economy environment. Nevertheless, the key takeaway message for businesses is that carefully drafted contracts will not be enough &ndash; both contractual provisions and the specific relationship between the business and worker are carefully analysed when determining a gig worker&rsquo;s employment status.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/559/f/Headshot Sam Vasaiwalla.png" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 115px; height: 110px;" /></strong></p>
<p><strong>Sam Vasaiwalla</strong> is a recent graduate currently completing her traineeship at Zaparas Lawyers.<br />
<span style="font-size:14px;"><em>The views in this article are the writer&#39;s own and do not reflect the views of Zaparas Lawyers.</em></span></p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/gig-economy-decision-fair-work-commission-finds-delivery-riders-are-employeeshttps://www.lawyersalliance.com.au/opinion/gig-economy-decision-fair-work-commission-finds-delivery-riders-are-employeesWed, 16 Jan 2019 00:00:00 +1100Can fintechs lessen financial stress for low-income employees?<p>Australia took a starring role in the October 2018 edition of <em>The Economist</em>, pitched as the success story of the developed world. But, despite Australia&rsquo;s growing economy and low unemployment figures, daily financial stress for many Australians is a reality. Almost one in five Australians would struggle to find $1,000 to cover an emergency expense, and one in three Australians spend everything they earn.&nbsp;</p>
<p>I observed a similar discrepancy on a recent trip to the USA: even with a robust economy, 28% of Americans are struggling to save and turn to high-cost credit products to pay bills. American fintechs (companies which use technology to support financial services) have seen an opportunity to disrupt the short-term high-cost credit market by offering services aimed at improving the financial health of American workers.</p>
<p>This article looks specifically at &lsquo;employer-based&rsquo; fintechs and how the impact of their services may be a win-win for both financially stressed employees and cost-conscious employers.</p>
<h4><strong>What are employer-based fintechs?</strong></h4>
<p>To explain what an employer-based fintech is, it&rsquo;s useful to profile a leader in the market. PayActiv is a US-based fintech which partners with employers to provide financial services to their employees. PayActiv&rsquo;s core product is the &lsquo;Earned Wage Access&rsquo;, which leverages the typical two-week or four-week payroll period during which employees are accruing wages that they cannot access until the next payroll date. On the PayActiv mobile app, an employee can see an estimate of the hours they have worked and the earned funds they have accrued but have not yet been paid. The employee can choose to access these earned funds through the PayActiv app (up to $500 per period). The employer then reimburses PayActiv by deducting from the employee&rsquo;s next paycheck. The funds can be used to pay a bill directly or can be transferred to the employee&rsquo;s bank account.</p>
<p>PayActiv charges a membership fee of $5 per employee for each pay period in which the earned income advance service is used. But, according to PayActiv, in over 50% of cases the membership fee is paid or subsidised by employers &ndash; so employees pay a smaller fee or no fee at all. The full suite of PayActiv services includes an automatic savings product where an employee can allocate hours worked towards savings, as well as mobile-based financial management tools.</p>
<h4><strong>What are the benefits for employees?</strong></h4>
<h3><span style="font-size:16px;"><em>Credit products are available at a low cost</em></span></h3>
<p>A recent study conducted by Harvard Kennedy School found that PayActiv&rsquo;s income advance product is much less expensive for American consumers than other forms of short-term credit, like a payday loan.</p>
<p>In the Australian context, a payday loan of $100 can cost a consumer around $24 in charges over a one-month period. PayActiv&rsquo;s charges for an equivalent loan would be only $5, making it around 20% of the costs of the payday loan (assuming that the employee is actually charged the full membership fee).</p>
<p>The salary link is critical to the affordability of PayActiv&rsquo;s products and the viability of its business model. By allowing access only to accrued wages, PayActiv takes on a minimal credit risk in making and collecting on its advances.</p>
<h3><span style="font-size:16px;"><em>Financially excluded employees gain access to financial services</em></span></h3>
<p>Provided they have some accrued wages, any employee is eligible to access the PayActiv income advance product, regardless of their credit score or liabilities. As a result, this product may be seen as promoting financial inclusion for those employees who cannot access traditional forms of credit due to their poor credit scores.</p>
<p>A criticism of the PayActiv product is that early access to wages is just delaying an employee&rsquo;s financial stress until their next payday. In response, PayActiv argues that where a financially stressed employee needs access to funds, it is better to access PayActiv&rsquo;s cheaper product, as compared with other forms of short-term credit. PayActiv also claims that consistent use of the PayActiv platform allows employees to work towards rejoining the traditional lending market in the future.</p>
<h4><strong>What are the benefits for employers?</strong></h4>
<p>There are significant benefits for employers in partnering with a fintech like PayActiv to provide access to financial services for employees. For example, the Harvard Kennedy School study found that employer-sponsored financial products may improve employee retention, with turnover rates 19% lower among users of PayActiv.&nbsp;</p>
<p>There are indirect benefits for employers too. Financial exclusion has been shown to negatively impact social, emotional and health outcomes, and financial stress can impair a person&rsquo;s decision-making abilities. By supporting employees to improve their financial wellbeing, employers may benefit from a more engaged, productive and healthy workforce.</p>
<h4><strong>Conclusion</strong></h4>
<p>At home, businesses like Employment Hero are starting to offer Australian employers tools to allow their employees to access a portion of their salary on demand. Many Australian employers, particularly smaller businesses, have offered this kind of flexibility to employees for years on an informal basis. New fintech options could make this process easier, more cost-effective and more efficient. However, as this industry proliferates, further research is required to determine whether accessing salary in advance can in some circumstances also exacerbate financial hardship.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/539/f/DanaBeiglari.jpeg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 146px;" />Dana Beiglari</strong> started her career as a lawyer at the commercial law firm, Allens. Her passion for social justice law led her to Legal Aid NSW. Dana is a Senior Solicitor in the Consumer Law practice group. Her team of 10 solicitors assists some of the most vulnerable people in NSW to access their consumer protection rights in credit and insurance matters. Dana was recently awarded the Ascham Leadership Scholarship to research initiatives used overseas to improve access to affordable and suitable credit for disadvantaged consumers.</p>
<p><em>The views in this article are the writer&#39;s own&nbsp;and do not reflect the views of Legal Aid NSW.</em></p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/can-fintechs-lessen-financial-stress-for-low-income-employeeshttps://www.lawyersalliance.com.au/opinion/can-fintechs-lessen-financial-stress-for-low-income-employeesThu, 20 Dec 2018 00:00:00 +1100Immigration lawyers acting for asylum seekers are ‘unAustralian’<h2><strong>I</strong>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</h2>
<p>I am the daughter of the son of the son of the son of a man who travelled to Australia from England by boat, some time in the mid-1800s. He settled in the very guts of NSW: on Gobbagombalin Station, on the northern side of Wagga Wagga.</p>
<p>In six generations those carrying my family name have migrated a total of 8 kms: from Gobbagombalin, to Gumly Gumly, to Wagga Wagga, where my mother and brother still live, and my father lived until he died six years ago.</p>
<p>From England to Australia to a standstill.</p>
<p>They were farmhands and boundary riders, and later plasterers (like my father), builders and farmers.</p>
<p>When someone applies the modifier &lsquo;Aussie&rsquo;, or says something is &lsquo;Australian&rsquo;, my family and people like us are historically what they mean. Fair-skinned and working class, from generations of fair-skinned, working class people. Australian in the elemental sense of the word.</p>
<h2><strong>II</strong></h2>
<p>I am the eldest of four children. My mother fell pregnant at 16, had me when she was 17, and told my unsuspecting, somewhat gormless dad on his 21<sup>st</sup> birthday that I was coming, ready or not.</p>
<p>The age of my mother when I was born, and her complete surrendering of her own ambition, forms a large part of my story and how I found my way to immigration law. My mother&rsquo;s sacrifice gnawed at her and manifested in a sometimes single-focused ambition for me, my brother and my sisters.</p>
<p>It takes a trauma to create a fissure in the hardest and most set piece of earth. My mother was that trauma.</p>
<p>I was the first person in my family, on both my mother and my father&rsquo;s sides, to enrol in University. I am certainly the first person to go on and study law. Outside of my pop (my maternal grandfather), who fought in the Australian army in France in WWII, I was apparently the first person on both sides of my family to apply for a passport.</p>
<p>My ambition to look up and out into the world from our well-worn patch of Australia drew suspicion and unease from my family, with the exception of my mother. My choice to go into immigration law even more so.</p>
<p>This suspicion and unease towards the world and things unknown is, in my experience, a quintessential part of the Australian psyche and what it means to be Australian.</p>
<h2><strong>III</strong></h2>
<p>Around 55,000 people live in Wagga, and in the 2016 census 84% of them were born in Australia.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span></p>
<p>As a kid my world was overwhelmingly white: there was a Greek family who ran the fish and chip shop (and still does), and a Chinese family who ran the Chinese restaurant. Any descendants of the original inhabitants, the Wiradjuri people, were few and far between and certainly not in my circle of experience.</p>
<p>Anyone else quite clearly <em>not from here </em>was treated with curiosity at best. And at worst, well. Worst could be bad.</p>
<h2><strong>IV</strong></h2>
<p>When you&rsquo;re growing up, particularly in a place like Wagga, it never occurs to you that something outside of your own life experience can be truth. And if you insulate yourself via stagnation in the literal and metaphorical sense, generation after generation, you can avoid anything that might ever challenge that truth.</p>
<p>Since leaving Wagga I&rsquo;ve grappled, as I guess we all do, with my own sense of identity. In particular I have thought about my family and their firmly planted feet and wondered: is the lack of movement a fear of the unknown, a lack of ambition, or a genuine satisfaction that a simple life based around things you know is the best life?</p>
<h2><strong>V</strong></h2>
<p>If you google &lsquo;what does it mean to be Australian&rsquo; you will find numerous essays and articles harping on about ideas of mateship, a fair go, and specific foods like Vegemite: as if a yeast-based spread the colour of nightmares is an illustration of the true sense of our identity.</p>
<p>This is uncontroversial and the path of least resistance. The truth is a lot more complicated and much less palatable.</p>
<p>It is easy to point to the concept of mateship and make correlations to helping asylum seekers. To say that lawyers helping those asylum seekers are Australian in the way we understand the concept. Of course it is in our culture to look after those seeking a life free of persecution &ndash; our community is made up of descendants of those either ostracised from their old community or seeking a better life. Of course we are an open, multicultural society &ndash; we believe in a fair go for everyone, provided they put in the work.</p>
<p>But the idea that Australia is fair-minded to everyone is aspirational at best.</p>
<p>Identity is not formed around words and platitudes and looking inward. If we&rsquo;re being honest we need to also look from the outside in. Our Australian identity is not just what we choose to push out into the world &ndash; it is defined by our actions, writ large.</p>
<h2><strong>VI</strong></h2>
<p>I&rsquo;ve had mixed feedback from friends my age in relation to what they learned of Aboriginal Australia and European settlement at school. In Year 7 at Wagga Wagga High I had a history teacher, Mr Wright, who once posed a scenario to us:</p>
<p>&lsquo;Aliens have landed in Australia. They are stronger and better armed than we are and want to colonise &ndash; what do we do?&rsquo;</p>
<p>Our ultimate solution derived from our 12-year-old wisdom was to bargain with them and just give them Tasmania.</p>
<p>After the discussion, he flipped the script and said that this was the exact situation inflicted upon Indigenous Australians when European settlers arrived. My mind was blown.</p>
<p>He also taught us about the Myall Creek Massacre. Almost 30 Aboriginal women, children and old men were murdered by European settlers near Moree in NSW.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[2]</a></span></p>
<p>&nbsp;Of all the massacres of Aboriginal people in Australia, this one was not the largest by far, but was notable because seven of the white perpetrators were tried, found guilty of murder and hanged.</p>
<p>These were the first pieces of information that broke open my truth about Australia and what it means to be Australian. That break allowed room for me to question other things, and seek out other truths.</p>
<p>I wonder now how much this small experience led me to the law, and immigration law in particular. A feeling that if this was what it meant to be Australian, I needed to find another way.</p>
<h2><strong>VII</strong></h2>
<p>You don&rsquo;t have to dig deep to comprehend Australia&rsquo;s fraught history with migrants post-European settlement.</p>
<p>The White Australia policy was borne of a fear of migrants from Asia and a changing cultural landscape. It is again relevant given rhetoric from politicians such as Fraser Anning in the context of Muslim Australians.</p>
<p>The Cronulla riots in 2005 were a boiling-over of under-the-surface tensions in a part of Sydney that is historically white and working class.</p>
<p>The rise and fall and rise again of Pauline Hanson and One Nation is telling of a strong undercurrent of cultural fear and racism.</p>
<p>And what of our treatment of asylum seekers?</p>
<p>Tampa. Children overboard. The use of the term &lsquo;illegal&rsquo; by governments to describe those seeking asylum, even though the act of seeking asylum itself is not illegal. Temporary Protection Visas. The promise to &lsquo;stop the boats&rsquo;. The Pacific Solution and the opening and use of offshore processing centres. Facebook memes about refugees and government handouts. Pauline Hanson wearing a burqa in Parliament. Fear-mongering about African &lsquo;gangs&rsquo; in Melbourne.</p>
<p>Willful defiance in the face of a 12-year-old girl on Nauru making repeated attempts at suicide because &lsquo;it is better being dead than being here.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[3]</a></span></p>
<p>This is Australia in the current global news cycle. This is &lsquo;Australian&rsquo; content in the UN. This is the conversation I have with my friends in California when they ask about my home.</p>
<p>This is the current iteration of &lsquo;Australian&rsquo;. Any action on the part of lawyers in the face of this, to assist asylum seekers, is by definition unAustralian. And it&rsquo;s hard to reconcile the sadness I feel when I say that.</p>
<h2><strong>VIII</strong></h2>
<p>To say Australian values distil to a &lsquo;fair go&rsquo; and a vague idea of mateship, and to extrapolate this out to the assistance of asylum seekers, is to ignore so much of what has occurred since European settlement.</p>
<p>Our actions speak louder than any platitudes about our dry sense of humour, or billboards of beaches and meat pies and wrinkled men wearing Akubras, squinting into the sun.</p>
<p>Under our egalitarian surface is fear and suspicion of the unknown, borne from generations of bedding down and looking inward.</p>
<p>From England to Australia to a standstill.</p>
<h2><strong>IX</strong></h2>
<p>Going home to Wagga can be culturally jarring. Having moved to Sydney after finishing my first degree in 1998, I now live in the liberal bubble of inner west Newtown. Ironically, the pride some of my family feel due to the very lack of geographical migration I have described, I have myself because I found a way to leave.</p>
<p>Education lifted me out. My mother&rsquo;s projected ambition lifted me out. Music and art opened up a way for me to seek another truth.</p>
<p>And I don&rsquo;t think it&rsquo;s wrong to be hopeful. We should hold on to that aspirational idea that being Australian has room for those fleeing persecution. To the hope that those wanting to help people seeking asylum will be considered Australian in every sense of the word.</p>
<p>But we are not there yet.</p>
<p>&nbsp;</p>
<p><em>A version of this reflective essay first appeared on the Global Mobility Immigration Lawyers (GLOMO) blog, along with other&nbsp;2018 GLOMO scholarship entries:&nbsp;<a href="https://glomo.com.au/blog/" target="_blank">https://glomo.com.au/blog/</a>.&nbsp;</em></p>
<p><strong><img alt="" src="/sb_cache/blog/id/557/f/Karen photo cropped.png" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 161px; height: 135px;" />Karen Bromham </strong>grew up in regional NSW and completed a Bachelor of Applied Science at Charles Sturt University. She accidentally began a career in immigration law in 1998 when she began working at a specialist recruitment firm who also ran an exchange program.&nbsp;Karen has gone on to complete a postgraduate Diploma in Law in 2017, and is currently completing College of Law.&nbsp;Karen now lives in Newtown, NSW with her husband and two dogs.<br />
&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> Australian Bureau of Statistics (27 June 2017), &rsquo;Wagga Wagga&rsquo;, &lt;<a href="http://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/1034" target="_blank">http://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/1034</a>&gt;<http: 1034="" 2016="" census="" census_services="" getproduct="" quickstat="" quickstats.censusdata.abs.gov.au="">.</http:></p>
<p><a href="#_ednref1" name="_edn1" title="">[2]</a> Australian Government, <em>Department of the Environment and Energy, National Heritage Places &ndash; Myall Creek Massacre Memorial Site,</em> &lt;<a href="http://www.environment.gov.au/heritage/places/national/myall-creek" target="_blank">http://www.environment.gov.au/heritage/places/national/myall-creek</a>&gt;<http: heritage="" myall-creek="" national="" places="" www.environment.gov.au="">.</http:></p>
</div>
<p><a href="#_ednref1" name="_edn1" title="">[3]</a> B Doherty, &lsquo;&ldquo;Suicidal 12-year-old refugee on Nauru will die if not removed&rdquo; doctors say&rsquo;,<em> <em>The Guardian, 12 September 2018,</em></em> &lt;<a href="https://www.theguardian.com/australia-news/2018/sep/12/suicidal-12-year-old-refugee-on-nauru-will-die-if-not-removed-doctors-say" target="_blank">https://www.theguardian.com/australia-news/2018/sep/12/suicidal-12-year-old-refugee-on-nauru-will-die-if-not-removed-doctors-say</a>&gt;<https: 12="" 2018="" australia-news="" sep="" suicidal-12-year-old-refugee-on-nauru-will-die-if-not-removed-doctors-say="" www.theguardian.com="">.</https:></p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/immigration-lawyers-acting-for-asylum-seekers-are-unaustralianhttps://www.lawyersalliance.com.au/opinion/immigration-lawyers-acting-for-asylum-seekers-are-unaustralianThu, 06 Dec 2018 00:00:00 +1100New sentencing laws in NSW <p>The new sentencing laws in NSW came into force in September 2018 and criminal lawyers and their clients have already had to grapple with the new terminology and sentencing options in court.</p>
<p>Here is a summary of the changes made by the <a href="https://legislation.nsw.gov.au/#/view/act/2017/53" target="_blank"><em>Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017</em> </a>(CSP Amendment Act) and some practical information on how these changes affect the practices of criminal lawyers who are defending clients in court.</p>
<p>As well as these changes there is now a presumption of full-time custody or a supervised order for offenders found guilty of a domestic violence offence.</p>
<p>The author wishes to acknowledge the valuable contribution of Legal Aid NSW in providing information contained in this article.</p>
<h4><strong>Changes designed to reduce reoffending and incarceration rates</strong></h4>
<p>The main thrust of the changes is &lsquo;to improve the availability and nature of community-based sentencing options&rsquo;. To achieve this, Community Corrections (formerly Probation and Parole) has been given extra resources to provide more supervision to offenders in the community.</p>
<p>The aims of this new community-based scheme are to:</p>
<ul><li>protect the community by reducing reoffending;</li>
<li>reduce the number of people receiving short prison sentences; and</li>
<li>get more offenders on community-based supervised orders (with conditions) to help address their offending behaviour.</li>
</ul>
<h4><strong>Alarming growth of prison population in NSW</strong></h4>
<p>The move to more community-based sentencing is in response to the massive increase in prisoner numbers in recent times.</p>
<p>In NSW the prison population has risen by an incredible 40 per cent in the last six years and is expected to reach 14,200 by the middle of 2019. (See the <a href="https://www.bocsar.nsw.gov.au/Pages/bocsar_custody_stats/bocsar_custody_stats.aspx" target="_blank"><em>Bureau of Crime Statistics and Research (BOCSAR)</em> report</a>, <a href="https://www.bocsar.nsw.gov.au/Documents/custody/NSW_Custody_Statistics_Jun2018.pdf" target="_blank"><em>New South Wales Custody Statistics</em>, <em>Quarterly Update, June 2018</em></a>.)</p>
<h4><strong>Community-based sentences more effective and cheaper than short term gaol sentences</strong></h4>
<p>Questions have also been raised as to whether short term gaol sentences actually reduce the risk of reoffending.</p>
<p>BOCSAR research has shown that offenders who receive community-based sentences like Intensive Correction Orders (ICO) are less likely to reoffend than those people who have been sentenced to a short term in prison. (See <a href="https://www.bocsar.nsw.gov.au/Documents/CJB/2017-Report-Intensive-correction-orders-versus-short-prison-sentence-CJB207.pdf" target="_blank"><em>Intensive correction orders versus short prison sentence: A comparison of re-offending</em></a>.)</p>
<p>Added to this is the cost of keeping someone in custody, which works out at $292.51 a day, as against $28.75 per day for someone on a community-based order.</p>
<p>The other advantage of community-based sentencing is that the offender can be subject to supervised conditions that address their offending behaviour, such as drug and alcohol treatment, education, training and other counselling and support.</p>
<h4><strong>What&rsquo;s gone in the new scheme</strong></h4>
<ul><li>Home detention</li>
<li>Suspended sentence (s12)</li>
<li>Community service orders</li>
<li>Section 9 good behaviour bonds</li>
<li>Section 10(1)(b) non-conviction bonds</li>
</ul>
<h4><strong>What remains in the new sentencing laws</strong></h4>
<ul><li>Section 10(1)(a) non-conviction dismissal</li>
<li>Section 10(1)(c) non-conviction bond to enter intervention program</li>
<li>Section 10A conviction with no further penalty</li>
<li>Fines</li>
<li>Section 11 deferral of sentence for rehabilitation</li>
<li>Expanded Intensive Correction Orders (ICO)</li>
</ul>
<h4><strong>What&rsquo;s new in the NSW sentencing laws</strong></h4>
<ul><li>Conditional Release Orders (CRO) with or without conviction</li>
<li>Community Correction Orders (CCO)</li>
</ul>
<p>As a rule of thumb the CRO replaces the old s10(1)(b), but the court can also impose a CRO with conviction.</p>
<p>The CCO replaces the s9 good behaviour bond and sits between the CRO and ICO in the sentencing hierarchy, with the CRO being the most lenient option.</p>
<h4><strong>Conditions of CCO and CRO</strong></h4>
<p>The CRO has two standard conditions: that the offender must not commit any offence during the order and must appear before the court if called upon to do so. The court can impose additional conditions (s99 CSP Amended Act).</p>
<p>The CCO has the same standard conditions as the CRO, as well as additional conditions (s89 CSP Amended Act).</p>
<p>Additional conditions can include curfews (only for CCOs), community service work (only for CCOs), abstaining from drugs or alcohol, entering rehabilitation or treatment, place restrictions, non-association with certain people and supervision.</p>
<p>Ultimately the court can impose any conditions which it thinks are appropriate (within limits).</p>
<h4><strong>Breaches of court orders under the new sentencing laws</strong></h4>
<p>Community Corrections now has the power to deal with minor breaches without filing a breach notice in court.</p>
<p>If a breach notice is filed for a CRO or CCO the procedure is much the same as before. The court may call up the offender to appear in relation to the breach and may take no action, vary or revoke the conditions, or revoke the order and resentence the offender.</p>
<p>When resentencing, the court can increase the severity of the order by imposing more conditions.</p>
<p>Importantly, the court can issue the same order multiple times with different conditions without stepping up the penalty to the next level in the sentencing hierarchy.</p>
<h4><strong>Intensive Correction Orders (ICO)</strong></h4>
<p>Intensive Correction Orders have been overhauled under the new system and can be imposed for up to three years.</p>
<p>Supervision is a mandatory condition, while home detention and community service work are now discretionary. Community service work can be up to 750 hours.</p>
<p>Community safety is the main consideration when a court considers an ICO. Section 66(2) states that the court must also decide whether full-time custody or an ICO is more likely to address the offender&rsquo;s risk of reoffending.</p>
<p>The two standard conditions for the ICO are that the offender must not commit any offence and that they submit to supervision by Community Corrections.<br />
Additional conditions include those mentioned above for CCOs and also include electronic monitoring.</p>
<p>ICOs are not available for domestic violence offenders unless the court can be satisfied that the victim or anyone who would reside with the offender is adequately protected (s4B(1)).</p>
<p>Community Corrections has the power to deal with breaches of ICOs and has a variety of options, including taking no action, warning the offender, imposing a curfew or referring the breach to the State Parole Authority if it is serious.</p>
<h4><strong>Sentencing reports</strong></h4>
<p>Sentencing reports are now referred to as Sentence Assessment Reports (SAR). They provide sentencing and condition options for the court to consider. They can be general assessment reports or focused on the imposition of one specific condition. Duty reports will still be available.</p>
<h4><strong>Domestic violence offences under the new sentencing laws</strong></h4>
<p>There is now a presumption of full-time imprisonment or a supervised order for domestic violence offences under s4A(1).</p>
<p>In addition, the court has to consider the safety of the victim of domestic violence before making a CCO or CRO. Safety of the victim or anyone else who may live with the offender is considered paramount.</p>
<p>Research has found that many domestic violence offenders were given s9 good behaviour bonds with no supervision. The new system addresses this by ensuring that such offenders are supervised, and their offending behaviour addressed by appropriate conditions.</p>
<h4><strong>Practical tips for criminal lawyers and their clients</strong></h4>
<ul><li>The main area of change is that criminal lawyers representing clients in drink driving matters or less serious criminal matters need to seek a CRO without conviction, instead of a s10(1)(b) under the old scheme. It&rsquo;s a change in terminology but the factors that need to be addressed are much the same as before.</li>
<li>Lawyers can suggest further conditions on a CRO if it gives the client a better chance of avoiding a conviction.</li>
<li>Lawyers need to advise AVO and domestic violence clients about the presumption of full-time custody or a supervised order if they are found guilty of a domestic violence offence.</li>
<li>&lsquo;Experienced&rsquo; clients need to be reminded by their lawyers that the old s12 suspended sentences are gone and they can no longer rely on these to avoid a possible gaol sentence.</li>
<li>Lawyers need to argue strongly against the s5 (Crimes (Sentencing Procedure) Act 1999) threshold being met &ndash; that is, fight to keep the client out of gaol by arguing in court that there are now alternatives to full-time custody which are community-based and which can be just as onerous as any gaol sentence.</li>
<li>Clients need to be encouraged by their lawyer to engage with Community Corrections and to take advantage of any help, support and treatment it can offer. It now has the resources to assist.</li>
</ul>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/criminal-law/new-sentencing-laws-in-nsw-practical-information-for-criminal-lawyers-and-their-clients/" target="_blank">here</a>.</em></p>
<p>&nbsp;</p>
<p><img alt="" src="/sb_cache/blog/id/555/f/Mark_Warren.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; height: 160px; width: 127px;" /><strong><a href="https://www.stacklaw.com.au/people/mark-warren/" target="_blank">Mark Warren</a></strong> is a lawyer in the <a href="https://www.stacklaw.com.au/service/personal/challenges/criminal-law/" target="_blank">criminal law</a> team at <a href="https://www.stacklaw.com.au/location/hornsby/" target="_blank">Stacks Collins Thompson</a>. He enjoys working in advocacy and in the courts, especially with legal aid work. He likes helping people from disadvantaged backgrounds and those facing significant challenges, such as drug and alcohol addiction and mental health problems.&nbsp;Before becoming a lawyer, Mark worked in the not-for-profit and social justice sector in media and communications roles. He spent twenty years as a television and radio journalist and reporter. He holds a science degree majoring in psychology and neurophysiology and an arts degree majoring in politics and Indigenous studies in addition to his legal qualifications.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/new-sentencing-laws-in-nswhttps://www.lawyersalliance.com.au/opinion/new-sentencing-laws-in-nswThu, 29 Nov 2018 00:00:00 +1100What is testamentary capacity? A basic guide.<p>As a lawyer specialising in wills and estates, I find myself increasingly providing advice (and often launching legal proceedings) on the basis that a deceased will-maker lacked the testamentary capacity to make his or her will.</p>
<p>The recent case of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2017/1007.html" target="_blank"><em>Ryan v Dalton; Estate of Ryan</em> [2017] NSWSC 1007</a> illustrates the point. In this case, a testator&rsquo;s final will was challenged. The court held this final will to be invalid due to lack of testamentary capacity. Probate was granted to a will made two years earlier instead. (For the background facts to this case, please see <em><a href="https://www.stacklaw.com.au/wcw/did-the-old-man-have-the-mental-capacity-to-change-his-will-which-case-won/" target="_blank">Did the old man have the mental capacity to change his will? Which case won?</a></em>)</p>
<h4><strong>Testator gives no reason for changing his will</strong></h4>
<p>In considering whether the testator, Mr Frank Ryan, had testamentary capacity at the point when he made his final will, the court examined a number of factors.</p>
<p>One significant factor was that Mr Ryan had always told his spouse and children that his finances were separate from hers and that he would leave his estate to his children.</p>
<p>There was no explanation from Mr Ryan as to why he was changing his will from the previous instructions, when it was previously accepted by all parties that he and his de facto partner had agreed to keep their finances separate.</p>
<h4><strong>Delusions, confusion and higher order executive functions</strong></h4>
<p>The nursing home&rsquo;s notes indicated that Mr Ryan&rsquo;s condition deteriorated after 2011 and that he suffered from occasional delusions and confusion. For example, he told his de facto partner that the nursing home staff had made him sleep in a paddock and that he sometimes had to beg them for food. (Keep in mind that such information would not have been apparent to the lawyer preparing the will and would have required some real investigation.)</p>
<p>Expert evidence after Mr Ryan&rsquo;s death suggested that while he could understand his affairs, had lucid intervals and appeared to be aware, he was suffering from vascular dementia which affected his higher order executive functions.</p>
<p>The court also noted that the legal concept of a &lsquo;lucid interval&rsquo; is open to debate from a medical perspective. Functions such as attention and alertness are thought to improve during such intervals, but not necessarily memory or higher order executive functions, which are essential for testamentary capacity.</p>
<h4><strong>NSW Law Society guidelines for testamentary capacity</strong></h4>
<p>An important factor in the court&rsquo;s decision was that the solicitor preparing Mr Ryan&rsquo;s will was not aware of the NSW Law Society guidelines relating to testamentary capacity, <a href="https://www.lawsociety.com.au/sites/default/files/2018-03/Clients%20mental%20capacity.pdf" target="_blank"><em>When a client&rsquo;s mental capacity is in doubt: A practical guide for solicitors</em></a>. Consequently, she failed to take the recommended precautionary measures when preparing Mr Ryan&rsquo;s 2013 will.</p>
<p>When getting Mr Ryan to sign the will, the solicitor read out the draft to him but did not seek confirmation of his instructions by asking non-leading questions (for example, &lsquo;Remind me, Frank, what did you want to do in your will?&rsquo; &lsquo;Can you remind me what assets you have?&rsquo; &lsquo;Remind me, how many children do you have?&rsquo;)</p>
<p>Reading a will aloud and relying upon implied agreement, expressed by the client nodding his head, is not enough to demonstrate agreement or awareness.</p>
<p>Another significant factor considered by the court was that the solicitor preparing Mr Ryan&rsquo;s will was not aware that he had dementia. She never asked questions of Mr Ryan, or of nursing home staff, that would have clarified this. Part of the reason for her failure to do so was that Frank appeared to be lucid and there were no indications that he lacked capacity (the solicitor&rsquo;s file notes were very detailed as to the conversations she had with Frank).</p>
<h4><strong>Wills drafted when testamentary capacity may be in doubt</strong></h4>
<p>If there is any question about a client&rsquo;s ability to make a will, a lawyer must address the question of testamentary capacity, which will not always be obvious. For lawyers and their clients, this creates the potential problem of a blowout in costs.</p>
<p>Conducting investigations with medical personnel and seeking opinions about mental capacity involves additional work for the lawyer and can take a substantial amount of time. A client is unlikely to be delighted with a solicitor charging far more than expected to make a will, particularly when capacity appears to be existent (especially for the client).</p>
<p>However if, after the testator&rsquo;s death, a will is challenged in NSW on the basis of testamentary capacity, the court will want to know whether the solicitor identified the factors in the NSW Law Society guidelines referred to above when taking instructions from the client to make the will. This is certainly the case if the client was a resident in a nursing home at the time the will was made.</p>
<h4><strong><em>Banks v Goodfellow</em> test of testamentary capacity</strong></h4>
<p>The test for testamentary capacity was set out in the 1870 English case <a href="https://swarb.co.uk/banks-v-goodfellow-qbd-1870/" target="_blank"><em>Banks v Goodfellow,</em> </a>where the judge said:</p>
<p>&lsquo;It is essential to the exercise of such a power that a testator shall <em>understand the nature of the act and its effects</em>; shall understand the<em> extent of the property</em> of which he is disposing; shall be able to <em>comprehend and appreciate the claims to which he ought to give effect</em>; and, with a view to the latter object, that <em>no disorder of the mind </em>shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties &ndash; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.&rsquo; [Emphasis added.]</p>
<p>In other words, the person making the will has to understand:</p>
<ul><li>what it means to be making a will;</li>
<li>what assets he or she possesses and is leaving to others, including real estate, money held in bank accounts, any other investments and any refundable accommodation deposit paid to a nursing home; and</li>
<li>who the people are who could make a claim on the estate and what moral obligation is owed to those people.</li>
</ul>
<p>Finally &ndash; and this was the hurdle that could not be cleared in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2017/1007.html" target="_blank"><em>Ryan v Dalton</em></a> &ndash; in order to have testamentary capacity, the will-maker cannot be affected by a mental disorder influencing the disposal of his or her assets. The evidence of Mr Ryan&rsquo;s dementia and his solicitor&rsquo;s failure to take the recommended steps to dispel the doubts regarding his capacity meant that he failed this test.</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/disputed-estates/what-is-testamentary-capacity-a-basic-guide/" target="_blank">here</a>.</em></p>
<p>&nbsp;</p>
<p><img alt="" src="/sb_cache/blog/id/553/f/Josh_Crowther_photop.jpg" style="width: 175px; border-width: 1px; border-style: solid; margin: 3px; float: left; height: 143px;" /><strong>Joshua Crowther</strong> is a lawyer in the <a href="https://www.stacklaw.com.au/location/taree/" target="_blank">Taree office</a> of <a href="https://www.stacklaw.com.au/" target="_blank">Stacks Law Firm</a> and an Accredited Specialist in Wills &amp; Estates by the Law Society of NSW. He joined Stacks in 2011 and is now the Practice Manager of a very busy <a href="https://www.stacklaw.com.au/service/personal/wealth/estate-planning/" target="_blank">wills and estates</a> practice. He holds a Masters of Applied Law (Wills &amp; Estates) from the College of Law in addition to his Bachelor of Laws (First Class Honours) and a Bachelor of Arts Communications (Honours).&nbsp;</p>
<p>Josh deals with both simple and complex estate matters and makes hundreds of applications for Probate or Letters of Administration each year. He is well versed in making complex applications to the Supreme Court regarding contentious wills&nbsp;for example, when people have limited capacity to make a will - and has made dozens of applications to the Supreme Court for statutory wills. Josh handles family provision matters, acting for executors when defending wills, or acting for claimants against wills. He conducts mediations in Sydney on a regular basis.&nbsp;<br />
&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/what-is-testamentary-capacity-a-basic-guidehttps://www.lawyersalliance.com.au/opinion/what-is-testamentary-capacity-a-basic-guideThu, 22 Nov 2018 00:00:00 +1100Benzene: The colourless killer<p>Described by the World Health Organisation as <em>&lsquo;a major public health concern&rsquo;</em>, human exposure to benzene has been linked with a range of severe and long-term health issues that are sadly being suffered by hard-working Australians. Although benzene is an established carcinogen and leukaemogen, this chemical is extensively used in many Australian manufacturing industries to the detriment of workers. Benzene is considered a valuable solvent and has become a key precursor in the production of a wide range of artificial compounds such as plastics, synthetic rubber, dyes and detergents.</p>
<p>By way of background, benzene is an aromatic hydrocarbon and a natural component of crude and refined petroleum. Also known as &lsquo;benzol&rsquo;, benzene is a colourless liquid which has a sweet odour and comes from both coal and petroleum sources.&nbsp;</p>
<p>The smell of benzene is akin to that of a lolly and is in fact so pleasant that it was initially used in the nineteenth and early twentieth centuries as after-shave lotion. Since World War II, the commercial use of benzene has grown to the extent that it surrounds us every day and is relied upon heavily in manufacturing. &nbsp;</p>
<p>Exposure can occur domestically as a result of the ubiquitous use of petrol products that contain benzene, including motor fuels and solvents. Exposure to cigarette smoke, whether actively or passively, along with the emissions from motor vehicles are also significant sources of exposure. In light of this, health authorities around the world have highlighted the need to reduce the exposure of workers and the general population to this toxic chemical.&nbsp;</p>
<p>Benzene is commonly used in refinery operations, chemical manufacturing, plastics and rubber manufacturing, and steel production. Accordingly, those at greatest risk of exposure include chemical workers, maintenance engineers, refinery workers, rubber workers, printers, leather workers, mechanics, steel workers, press workers, painters, petrol distributors and handlers, and firefighters. These workers are often unaware when they are being exposed to benzene given how quickly this chemical evaporates into the air. Additionally, the sugary smell is easily overlooked compared with other chemicals, such as bleach or a thiol-containing product, which have intolerable and distinctive odours.&nbsp;</p>
<p>Benzene exposure can be deadly for workers who are exposed for long periods of time or at high levels. Acute exposure can result in irritation of the skin, eyes and respiratory system and in the central nervous system depression and arrhythmias. Additionally, chronic exposure to benzene has been proven to result in renal tubular dysfunction, hepato-cellular damage, dermatitis, bone marrow failure, acute myeloid leukaemia, non-Hodgkin&rsquo;s lymphoma, multiple myeloma and genetic defects. Long-term or heightened exposure can also have a detrimental impact on&nbsp;the central nervous system and can cause personality or mood changes, fatigue, decreased motivation, concentration difficulties and impairment to memory. Often, workers exposed to high amounts of benzene will experience symptoms early on but won&rsquo;t be diagnosed for a few years given the complexity of their illnesses, leaving them in years of limbo.&nbsp;</p>
<p>The dangers and effects of occupational exposure to benzene have been well known since the 1960s. As a result, governments around the world have made conscious efforts to reduce the use of this toxin. In August 2001, the <a href="https://www.legislation.gov.au/Details/F2006B01339" target="_blank"><em>Fuel Standard (Petrol) Determination</em></a> was made which reduced the maximum volume of benzene in petrol to 1% between January 2002 and 2006. This had a positive impact, resulting in a reduction of benzene in Australian air.&nbsp;</p>
<p>Despite standards and public awareness about the use of benzene changing, the attitude of industry employers has not changed &ndash; many are continuing to expose their workers to high levels of benzene simply to increase output and profit. Even more worrying is the fact that some employers today fail to alert their workers to the fact that benzene is present in the workplace, and require staff to work in areas where they will be exposed without personal protective equipment. Employees have the right to expect they are working in an environment where their health and safety is the number one priority. Workers, not toxic chemicals, are an employer&rsquo;s greatest resource and should not be put at risk for the benefit of production and dollars.&nbsp;</p>
<p>&nbsp;</p>
<p><img alt="" src="/sb_cache/blog/id/527/f/Luke headshot.png" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 111px;" /><strong>Luke Perilli</strong> was admitted to practice in March 2016 and has since practised in personal injuries litigation. He previously worked at Shine Lawyers between February 2016 and 2018, practising in Workers&rsquo; Compensation, Public Liability and Motor Vehicle Accident claims. Since February 2018 he has been employed by Maurice Blackburn and works in the asbestos diseases/dust team, located in the Melbourne office. He assists individuals suffering asbestos and dust-related illnesses in compensation claims. His practice includes common law claims and WorkCover claims.&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/benzene-the-colourless-killerhttps://www.lawyersalliance.com.au/opinion/benzene-the-colourless-killerThu, 15 Nov 2018 00:00:00 +1100Algorithms, artificial intelligence, automated systems and the law<p>In an item published recently in the ANU Reporter &ndash; <a href="https://reporter.anu.edu.au/do-we-have-frankenstein-problem" target="_blank"><em>Do we have a Frankenstein problem?</em></a> &ndash; ANU lecturer Dr Russell Smith focused on artificial intelligence (AI), and the impact it has on the lives of everyday people through automated systems. One question which flows from this is whether the law lags behind technological development (as it usually does)&nbsp;and whether some kind of legal framework is needed.&nbsp;</p>
<p>There are obvious aspects of AI that can harm humans. If the systems in your self-driving car fail, you will likely be injured or killed. But can you be harmed by AI precisely because it is working perfectly? And if there is potential for harm, is legal protection available?</p>
<h4><strong>To what extent are rights of individuals threatened by autonomous systems?</strong></h4>
<p>A useful start lies in the concept of random numbers and, importantly, understanding that there is no such thing as a &lsquo;random&rsquo; number. So-called random number generators are all driven by algorithms which produce the numbers. If you know what the algorithm is, you can predict what the numbers will be.</p>
<p>So the numbers produced by random number generators are not random at all. The point here is that it is not enough to know what an automated system is meant to do; to understand its implications fully it is also necessary to know how the system does what it does.</p>
<p>The broad question posed by Dr Smith&rsquo;s article is the extent to which the rights of individuals are threatened by systems working autonomously &ndash; that is, without any human input into the activities they conduct. The question we ask here is whether the law is able to safeguard those rights.</p>
<h4><strong>Flaws in Centrelink &lsquo;robo debt&rsquo; algorithm resulted in thousands of baseless demands</strong></h4>
<p>While the use of autonomous weaponised drones in warfare, cited by Dr Smith, is a very obvious and dramatic example, at a more mundane level readers will recall the recent uproar following the penalising by Centrelink of social security recipients who had allegedly been overpaid.</p>
<p>This &lsquo;crackdown&rsquo; was managed by an automated system, and presumably the attraction of this system was that it was easily and quickly able to launch an enforcement blitz which otherwise would have consumed large amounts of staff time.</p>
<p>The system was meant to detect overpayments but, as has just been said in relation to random numbers, the key was how the system went about detecting them.</p>
<p>As is turned out, &lsquo;robo debt collector&rsquo; worked largely on averages; could not adequately deal with variations in income; and had trouble distinguishing between gross and net incomes. As a result, repayment demands were issued to around 20,000 welfare recipients who owed little, if indeed anything at all.</p>
<p>Elsewhere, while the US stock market &lsquo;Flash Crash&rsquo; of 2010 was triggered by intentional rogue behaviour, that conduct relied on automated trading algorithms which bought and sold and made and cancelled offers at lightning speed, meaning that the Dow Jones lost almost 1,000 points in under ten minutes before making a partial recovery. But the cost was serious.</p>
<h4><strong>Individuals targeted by automated systems forced to collect evidence to prove their innocence</strong></h4>
<p>Obviously, if someone claims money from you which in fact you do not owe, the law has well-established processes through which you can resist the claim, as long as you are able to assemble the facts supporting your position. However, this doesn&rsquo;t mean that there isn&rsquo;t a problem.</p>
<p>Looking at the &lsquo;robo-debt&rsquo; issue, we are conditioned to expect that what a very official-looking letter says must be right, which in itself would have unsettled many recipients.</p>
<p>Secondly, people do not necessarily keep the kinds of records which will easily enable them to rebut a baseless claim. And, even if they do have such records, in a practical sense they suffer the disadvantage of needing to &lsquo;prove innocence&rsquo;, and possibly suffer financial disadvantage in doing so.</p>
<p>So, while remedies are available after the event, that fact alone does not amount to a complete solution.</p>
<h4><strong>Disclosures by government agencies under freedom of information legislation</strong></h4>
<p>Where government agencies are concerned, it would be possible to require them to disclose routinely their use of automated systems to make decisions affecting the interests of citizens. Freedom of information legislation throughout Australia (in NSW, the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/giaa2009368/" target="_blank"><em>Government Information (Public Access) Act 2009</em></a>) requires that agencies regularly publish policies and procedures, so it would not seem too difficult for agencies to make public those processes which are using only automation and are beyond human control.</p>
<p>A related approach can be found in privacy legislation (see the <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/pa1988108/" target="_blank"><em>Privacy Act 1988 </em>(Cth)</a>), under which government agencies and businesses (other than small businesses) which hold or collect personal information are obliged to disclose the purposes for which they use that information, and to refrain from using it for other purposes without prior notification.</p>
<p>This could be supplemented by a requirement to disclose to affected individuals each instance where some right or interest of theirs would be dealt with by an automated system.</p>
<h4><strong>Giving more weight to human challenges of decisions made by machines</strong></h4>
<p>A more radical approach, based on this kind of disclosure, might be inspired by the memory of Sir Arthur Kekewich, a Chancery Division judge for England and Wales at the turn of the 19th century.</p>
<p>Sir Arthur had a reputation (to what extent actually deserved is hard to tell) of being such a poor judge that one counsel is said to have opened his address by saying &lsquo;This is an appeal against a decision of Mr Justice Kekewich, my Lords, but there are other grounds to which I shall come in due course&rsquo;.</p>
<p>Drawing on His Honour&rsquo;s legacy, an approach could be available under which enforcement of any decision made by a machine could be halted when challenged, and proceeded with only when confirmed.</p>
<p>If the onus were on the business or agency to establish the validity of the action, rather than on the individual to disprove it, that might provide some real protection.</p>
<h4><strong>What happens when machines absorb our flaws and become autonomous?</strong></h4>
<p>Of course, the examples given here are not the truly scary things, like automated military drones which cannot be stopped even when the humans have changed their minds. Other examples which can be viewed as either full of potential or deeply alarming include the creations of science fiction, or computers like IBM Watson, which are not only programmed to answer questions, but can learn in the same way that humans do by reprogramming themselves as a result of experience, then start to act differently, and perhaps unpredictably.</p>
<p>Recent media attention has been given to the emergence of AI which mimics the worst aspects of human nature, rather than the best ones. (For example, see Stephen Buranyi&rsquo;s <a href="https://www.theguardian.com/inequality/2017/aug/08/rise-of-the-racist-robots-how-ai-is-learning-all-our-worst-impulses" target="_blank"><em>Rise of the racist robots &ndash; how AI is learning all our worst impulses</em></a>.)</p>
<p>Believe this sort of thing is still in the future? Think about the predictive text function on your mobile, or the voice recognition system on your computer. All you need to do is to say: &lsquo;Hey Siri &ndash; tell me more about algorithms!&rsquo;<br />
&nbsp;</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/bankruptcy/algorithms-artificial-intelligence-automated-systems-and-the-law/" target="_blank">here</a></em>.</p>
<p><a href="https://www.stacklaw.com.au/people/geoff-baldwin/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank"><img alt="" src="/sb_cache/blog/id/511/f/Geoff Baldwin 4.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 150px; height: 141px;" />Geoff Baldwin</a> is a lawyer in the <a href="https://www.stacklaw.com.au/service/business/operations/employment-law/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">employment law</a> team at <a href="https://www.stacklaw.com.au/location/parramatta/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">Stacks Champion</a>. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/algorithms-artificial-intelligence-automated-systems-and-the-lawhttps://www.lawyersalliance.com.au/opinion/algorithms-artificial-intelligence-automated-systems-and-the-lawThu, 08 Nov 2018 00:00:00 +1100TAC amendments allowing professional administration fees may fail<p>The High Court in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2005/47.html" target="_blank"><em>Willet v Futcher</em> [2005] HCA 47</a> delineated the amount of expenses claimable in tort for expenses incurred administering a trust fund for an individual under disability as a consequence of that tort. The amount of this head of damage can be significant because it covers the present value future administration expenses for a potentially large sum of money for the claimant&#39;s lifetime. For example, the amount claimed in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2005/47.html" target="_blank"><em>Willet v Futcher</em></a> itself was close to $1m.</p>
<p>The <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/e37347774ce6c1e1ca2582a30077ee61!OpenDocument" target="_blank">Treasury and Finance Legislation Amendment Bill 2018 </a>was recently introduced into the Victorian Parliament, purporting to remove the right to claim this head of damage by making it payable instead under the statutory no-fault compensation scheme run by the Transport Accident Commission (TAC). A proposed new <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/taa1986204/s62a.html" target="_blank">s62A</a> of the <em>Transport Accident Act 1986</em> (Vic) (TAA) requires the TAC to pay professional administration costs where the administrator carries on the business of administration of estates. However, <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/taa1986204/s62a.html" target="_blank">s62A(b)</a> limits liability only to administering benefits received under the statutory compensation scheme (&lsquo;this Part&rsquo;). Section <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/taa1986204/s76b.html" target="_blank">76B</a> expands upon but essentially confirms this. It further provides that TAC will not pay such expenses if damages have already been recovered in respect of professional administration costs, clearly to avoid &lsquo;double dipping&rsquo;.&nbsp;</p>
<p>The introduction of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/taa1986204/s93.html" target="_blank">s93(10)(ba)</a> of the TAA appears to preclude recovery of these expenses at common law if they are payable by TAC under the statutory compensation scheme. However, whether the Bill achieves its purpose of doing away with <em><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2005/47.html" target="_blank">Willett v Futcher</a> </em>damages at common law is arguable because <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/taa1986204/s62a.html" target="_blank">s62A</a> does not seem to cover the following:</p>
<ol><li>The proceeds of the common law claim itself (which is often the biggest part of the fund).</li>
<li>Fees payable to someone other than a professional administrator. This may include bank fees, brokerage, accounting fees and plausibly a wide variety of other items (these are likely to be relatively small).&nbsp;</li>
<li>Fees incurred in administering the claimant&rsquo;s other assets (if any) which have been accumulated independently of the transport accident (the amount of these fees will depend upon the relative wealth of the claimant before the transport accident).</li>
</ol>
<p>The categories of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2005/47.html" target="_blank"><em>Willet v Futcher </em></a>damages currently claimable at common law are broad; see, for example, Kaye J&#39;s decision in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2010/467.html" target="_blank"><em>VWA v Asixa</em> (2010) VSC 467</a> (21.10.10). The proposed amendment far from covers the field. Lawyers acting for TAC claimants will need to be careful to ensure that any categories of administration expenses not payable directly by TAC are claimed in the common law claim for negligence.&nbsp;<br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/549/f/Harry Gill cropped.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 118px;" />Harry Gill</strong> won the Solicitors Prize for Young Solicitors in Injury Law in 1989 and was accredited as a Specialist in Personal Injury Law since 1994.&nbsp;He later served on the Personal Injury Advisory Committee which sets the accreditation exams for several years.&nbsp;He also had a stint on the TAC Legal Liaison Group. Harry was admitted into partnership at Robinson Gill in 1998. He was Chair of the LIV&rsquo;s Workers&rsquo; Compensation Committee from 2004 to 2013, a time when the WorkCover scheme achieved far greater stabilisation after two decades of turbulence. His persistent lobbying was largely responsible for an amendment to the <em>Accident Compensation Act.&nbsp;</em>He continues to serve on the Workers&rsquo; Compensation Committee and the VWA&rsquo;s Legal Liaison Group.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/tac-amendments-allowing-professional-administration-fees-may-fail-176https://www.lawyersalliance.com.au/opinion/tac-amendments-allowing-professional-administration-fees-may-fail-176Thu, 01 Nov 2018 00:00:00 +1100Damages for pain and suffering<p>A jury in the matter of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2017/342.html" target="_blank"><em>Collins v Staminirovitch</em> [2017] VSCA 342</a>&nbsp;allowed a plaintiff, who sustained comminuted fractures to her nasal bones with ongoing cosmetic deformity and a mild psychiatric reaction, $100,000 in damages for the pain and suffering aspect of her claim. The Court of Appeal upheld this verdict in its decision of 23 November 2017 in the face of an appeal claiming that a far more substantial psychiatric injury should have been found. While defendants may rely upon this decision in arguing for low levels of damages, I would caution that this plaintiff had significant credibility issues in that she failed to advise her doctors regarding some significant matters in her history and she also failed in-built validity tests in relation to neuropsychological and olfactory issues.&nbsp;</p>
<p>Further, jury decisions on damages are notoriously variable and the hurdle faced by the unhappy party on appeal is substantial. This hurdle is probably best summarised by the Court of Appeal as follows:</p>
<p><em>&lsquo;&hellip;In order to succeed, the applicant must demonstrate that the jury, acting reasonably, could not, on the available evidence, have arrived at the conclusions but did in relation to each head of damages claimed by the applicant.&rsquo;&nbsp;</em></p>
<p>It went on to say,<em> &lsquo;The Appeal Court is required to assume that the jury took the view of the evidence that was most favourable to the verdict. As such, the threshold for an appellant to succeed, on such a ground, is a formidable one&hellip;&rsquo;</em></p>
<p>Likewise, defendants might take some joy from the decision of Macaulay J in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2016/557.html" target="_blank"><em>Davies v Nilsen </em>[2016] VSC 557</a> in the Supreme Court on 19 September 2016, where His Honour assessed pain and suffering damages of $125,000 for the neck and upper back while rejecting more significant injuries. The Court of Appeal did not disturb this part of the decision but did allow the appeal because a substantial knee injury (not other substantial injuries claimed) was held to be caused by the subject accident. Credibility issues were again in play, in particular the fact that there was very significant delay in the reporting of some injuries and the fact that this plaintiff had significant collateral issues which she attempted to attribute to the subject accident. In my view, the decision is not one that should be relied upon by defendants because it essentially gives support for the fact that $125,000 is a reasonable amount for a mere whiplash injury, that part of the trial judge&rsquo;s decision not having been impeached by the Court of Appeal or even under challenge from either party.</p>
<p>It would appear to me that these decisions are less significant than might be claimed. As always, caution is required with assessments by juries. More pertinently, credibility issues are likely to be the most significant problem for a plaintiff in personal injury claims. There are of course a variety of ways that the plaintiff&rsquo;s solicitor can protect a client from these issues: by cautioning the client at the outset, ensuring that histories given to practitioners are consistent and scouring medical records, to name but a few strategies.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/549/f/Harry Gill cropped.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 118px;" />Harry Gill</strong> won the Solicitors Prize for Young Solicitors in Injury Law in 1989 and was accredited as a Specialist in Personal Injury Law since 1994.&nbsp;He later served on the Personal Injury Advisory Committee which sets the accreditation exams for several years.&nbsp;He also had a stint on the TAC Legal Liaison Group. Harry was admitted into partnership at Robinson Gill in 1998. He was Chair of the LIV&rsquo;s Workers&rsquo; Compensation Committee from 2004 to 2013, a time when the WorkCover scheme achieved far greater stabilisation after two decades of turbulence. His persistent lobbying was largely responsible for an amendment to the <em>Accident Compensation Act.&nbsp;</em>He continues to serve on the Workers&rsquo; Compensation Committee and the VWA&rsquo;s Legal Liaison Group.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/damages-for-pain-and-sufferinghttps://www.lawyersalliance.com.au/opinion/damages-for-pain-and-sufferingThu, 25 Oct 2018 00:00:00 +1100Current legal struggles for people seeking asylum in Australia<p><strong>Dr Carolyn Graydon, Principal Solicitor and Manager of the Human Rights Law Program, Asylum Seeker Resource Centre presented this paper at the ALA National Conference on 19 October.</strong></p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/current-legal-struggles-for-people-seeking-asylum-in-australiahttps://www.lawyersalliance.com.au/opinion/current-legal-struggles-for-people-seeking-asylum-in-australiaTue, 16 Oct 2018 00:00:00 +1100Expert evidence: Traffic accident reconstruction reports and physical observations <p><strong><a href="https://archive.sclqld.org.au/qjudgment/2018/QSC18-209.pdf" target="_blank"><em>Brown v Daniels &amp; Anor</em> [2018] QSC 209&nbsp;</a></strong></p>
<p>The plaintiff claimed for personal injuries sustained when his motorcycle collided with the rear of a horse float towed by the first defendant when the first defendant turned into the path of the plaintiff. The compulsory insurer (second defendant) alleged that the plaintiff was travelling too fast to be seen by the driver when turning, and that despite the traffic regulations the driver was not negligent &ndash; <a href="https://www.queenslandjudgments.com.au/case/id/301585" target="_blank"><em>Brown v Holzberger</em> [2017] 2 Qd R 639</a> and <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1967/43.html" target="_blank"><em>Sibley v Kais </em>(1967) 118 CLR 424</a>.&nbsp;</p>
<p>The plaintiff denied he was travelling too fast, primarily because he was &lsquo;running-in&rsquo; a new engine and gearbox that had recently been installed in his motorcycle. The plaintiff sustained significant injuries, which also included his inability to recall the collision and a period leading up to it.&nbsp;</p>
<p>During the trial the plaintiff sought to rely on the report of Dr Kahler, but the second defendant objected.&nbsp;</p>
<p>Justice Davis considered U<em>niform Civil Procedure Rules 1999</em> (Qld) <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_reg/ucpr1999305/s5.html" target="_blank">r5</a>, <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_reg/ucpr1999305/s423.html" target="_blank">r423</a> and in particular <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_reg/ucpr1999305/s429.html" target="_blank">r429</a>:</p>
<p style="margin-left:1.0cm;">&lsquo;429 Disclosure of report</p>
<p style="margin-left:1.0cm;">A party intending to rely on a report must, unless the court otherwise orders, disclose the report &ndash; (a) if the party is a plaintiff &ndash; within 90 days after the close of pleading; or (b) if the party is a defendant &ndash; within 120 days after the close of pleading; or (c) if the party is not a plaintiff or defendant &ndash; within 90 days after the close of pleading for the party.&rsquo;</p>
<p>To the extent that there was non-compliance with <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_reg/ucpr1999305/s429.html" target="_blank">r429</a>, his Honour excused it having regard to <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCA/2017/127.html" target="_blank"><em>Allianz Australia Insurance Ltd v Mashaghati </em>[2018] 1 Qd R 429</a> at [54]-[56].</p>
<p>Justice Davis next turned to consider if the expert opinion was admissible. He found that expert opinion evidence is admissible if [30]:</p>
<ol style="list-style-type:lower-roman;"><li>there is a recognised field of study;</li>
<li>the witness is an expert in that field;</li>
<li>the opinion is based on the witness&rsquo;s experience and expertise in the field; and</li>
<li>the opinion evidence is probative of a fact in issue.</li>
</ol>
<p>Justice Davis noted that in Queensland there is no recognised field of expertise of &lsquo;traffic accident reconstruction&rsquo;, but that the science of engineering is a recognised field, and to that extent an expert opinion based on engineering science would be admissible, subject to relevance. His Honour noted the limitations of this because problems arise <em>&lsquo;when there are unknown variables or assumptions so that the opinion cannot be said to be properly founded in the field&rsquo;</em> [34]. Justice Davis noted the limitations of expert evidence in traffic accident cases generally &ndash; <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2003/22.html" target="_blank"><em>Fox v Percy</em> (2003) 214 CLR 118</a>&nbsp;and <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/64.html" target="_blank"><em>Anikin v Sierra</em> (2004) 79 ALJR 452</a>. &nbsp;</p>
<p>Relevantly, because the plaintiff could not recall the collision and his speed leading up to it, Dr Kahler included in his report some photographs of the roadway leading up to the collision area and intersection area. His Honour accepted that the photographs were relevant but found that the opinions were not based on science and it was open to the Court to draw its own conclusions [43]:</p>
<p style="margin-left:1.0cm;">&lsquo;These opinions are, with respect, not truly based on any science. They are simply conclusions which are drawn from physical evidence. No science or expertise is identified as the basis upon which the conclusions are drawn. The Court is in as good a position as Dr Kahler to consider the evidence and draw conclusions as to the movement of the two vehicles and of Mr Brown in the accident. The objection was properly taken and the evidence was excluded.&rsquo;</p>
<p>Next, Justice Davis considered the document <em>&lsquo;A guide to road design part 3: Geometric design&rsquo; </em>included in Dr Kahler&rsquo;s report considering reaction times of drivers. His Honour excluded it because reaction times of drivers are <em>&lsquo;significantly undermined by the variables in any particular case&rsquo;</em> [44].</p>
<p>Many of the other conclusions of Dr Kahler were excluded either by concession or by rulings by his Honour because the opinions were not based on the science of engineering, but assumptions drawn from the physical evidence, which Justice Davis found the Court was in as good a position to assess as the expert [47].&nbsp;<br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/535/f/David Cormack.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 126px;" />David Cormack</strong> practised as a solicitor for ten years before being admitted as a barrister in 2003, initially as In-House counsel for WorkCover Queensland. In 2009, David moved to the Private Bar and is briefed on personal injuries, occupational health and safety, industrial relations, employment law, mental health, mediations and restorative practices. David is a contributor to The National Work Health and Safety Law and Court Forms, Precedents &amp; Pleadings Qld (Insurance; Discontinuance &amp; Dismissal / Principles &amp; Practice) subscriptions (LexisNexis). David maintains a <a href="https://www.barristerdirect.com.au/" target="_blank">web page</a> and <a href="https://www.barristerdirect.com.au/blog/" target="_blank">blog</a>, providing <a href="https://www.barristerdirect.com.au/about/2907-2/" target="_blank">newsletters</a> to <a href="https://barristerdirect.us5.list-manage.com/subscribe?u=2f5ccdb8c5858f2302e4baf10&amp;id=a5bb9cdfc6" target="_blank">subscribers</a> and has launched a free &lsquo;<a href="https://www.barristerdirect.com.au/apps/" target="_blank">App</a>&rsquo; for calculating future losses of income on the 3 and 5% actuarial Tables, together with superannuation. Recreationally, David enjoys cycling for charity events and competing in kayaking. David volunteers with the Wynnum Redlands Canoe Club. David practices pro bono restorative justice via the <a href="http://sycamorevoices.org/" target="_blank">Sycamore Tree Project</a> with Prison Fellowship Australia (QLD).</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/expert-evidence-traffic-accident-reconstruction-reports-and-physical-observationshttps://www.lawyersalliance.com.au/opinion/expert-evidence-traffic-accident-reconstruction-reports-and-physical-observationsThu, 11 Oct 2018 00:00:00 +1100Superannuation and TPD Insurance: Four things you should tell every TPD client <ol><li><strong>Tax is payable on your TPD benefit.</strong></li>
<li><strong>Do NOT consolidate any superfunds as this can increase your tax liability.</strong></li>
<li><strong>Centrelink and other benefits may be affected.&nbsp;</strong></li>
<li><strong>Super and TPD funds will remain accessible.</strong></li>
</ol>
<p>On successful approval of a superannuation Total and Permanent Disability (TPD) claim, the claimant will usually need to make an initial withdrawal to pay legal fees and provide for any immediate expenses. However, before they withdraw their entire benefit, they should understand their options and the financial consequences of their decisions.</p>
<h2><span style="font-size:16px;"><strong>1. Tax</strong></span></h2>
<p>Tax is not payable when a TPD claim is approved and paid into the claimant&rsquo;s superannuation account. Tax is payable when the claimant then withdraws their benefit from superannuation prior to their preservation age &ndash; currently between ages 57 and 60 depending on their date of birth.</p>
<p>The standard tax rate when withdrawing TPD and superannuation funds before preservation age is 22% (20% plus Medicare levy). However, if a person is making a withdrawal after TPD then a portion of the withdrawal becomes tax-free &ndash; this is called a &lsquo;tax-free uplift calculation&rsquo;. This means that the effective tax rate on withdrawal can vary between less than 1% and over 18%. In fact, a person with multiple TPD claims will have a different tax rate on each one.</p>
<p>All too often people reach the end of the claim process and receive the great news that their insurance claim is successful, only to discover that they will lose a significant portion of their payout to tax. Many TPD claimants can significantly reduce or eliminate their tax liability if they have some flexibility in how they access their TPD and super benefits.&nbsp;</p>
<h2><span style="font-size:16px;"><strong>2.&nbsp;Do NOT consolidate superannuation accounts</strong></span></h2>
<p>Lawyers may advise their TPD clients not to roll over any superannuation funds that have insurance components to ensure they don&rsquo;t lose the ability to claim on any of their insurance cover &ndash; however, most people don&rsquo;t understand that rolling over superannuation funds can also increase the tax payable when accessing their TPD benefit.</p>
<p>An important variable in the &lsquo;tax-free uplift calculation&rsquo;, as mentioned above, is the superannuation account&rsquo;s &lsquo;eligible service date&rsquo;. This date is the EARLIER date of either:</p>
<ol><li>the date they commenced their superannuation account; or</li>
<li>the commencement date of any account rolled into their current super account.</li>
</ol>
<p>The earlier this date is, the higher the tax rate the claimant will pay when they withdraw their benefit.</p>
<p>A recent example was a 48-year-old man who was almost at the end of his TPD claim case; he had a $200,000 TPD benefit held in his superannuation account. His tax payable would have been just under $2,000 (under 1%) on full withdrawal of this benefit. He had another small super account with a balance of roughly $1,500 and no insurance attached to it, which was set up for a job he had just after high school. He decided to roll this amount into his larger super account &ndash; unfortunately, this increased his tax payable on withdrawal to over $28,000 (over 14%).&nbsp;</p>
<h2><span style="font-size:16px;"><strong>3.&nbsp;Centrelink and other benefits</strong></span></h2>
<p>A successful TPD claim has no impact on a person&rsquo;s Centrelink or other benefits (such as child support payments), because the TPD claim is initially paid into superannuation which is excluded from Centrelink means testing until a person reaches their Centrelink Age Pension Age, which is between 65.5 and 67.</p>
<p>However, when the claimant then accesses their TPD and/or existing superannuation balance, this may impact their Centrelink entitlements. Different Centrelink benefits have different types of means testing.</p>
<p>With Centrelink pensions and allowances (such as Newstart allowance, Disability Support Pension, carer payments, etc) the actual withdrawal of TPD and/or superannuation amounts does not impact Centrelink means testing &ndash; it&rsquo;s what the claimant does with the funds that may affect these Centrelink benefits. For example, if the withdrawn amount is spent or used to pay debts and legal fees, then there is no impact on their Centrelink payments. Any remaining amount left in the claimant&rsquo;s bank account is treated as a &lsquo;financial asset&rsquo; and Centrelink will include this amount in their &lsquo;income&rsquo; and &lsquo;assets&rsquo; means testing, potentially reducing the claimant&rsquo;s Centrelink entitlements.</p>
<p>Centrelink means testing for Family Tax Benefits is different. Eligibility for these benefits is based on the recipient family&rsquo;s &lsquo;adjusted taxable income&rsquo;. When a person makes a superannuation withdrawal before age 60 a portion of the withdrawal will be counted as &lsquo;taxable income&rsquo;, so the TPD and super withdrawal may affect the claimant&rsquo;s Family Tax Benefit. Similarly, child support assessments are based on adjusted taxable income, and may be impacted by TPD and superannuation withdrawals.</p>
<h2><span style="font-size:16px;"><strong>4. Superannuation and TPD funds remain accessible</strong></span></h2>
<p>Having often gone through a long and arduous process to get their TPD claim approved, claimants often want to get their hands on their TPD proceeds immediately. This is due to a fear that if they leave money in super it might be locked up again and they will have to go through another long process to access it, or possibly have to wait until retirement age.</p>
<p>In reality, once a claimant&rsquo;s TPD claim is approved their existing superannuation balance and TPD claim becomes &lsquo;unrestricted, non-preserved&rsquo;. This means that the claimant has access to these funds at any time in future and all they need to do is complete a withdrawal form to access further funds. Even if they regain their health and go back to work or roll over their benefit to another super account, they will still have access to these unrestricted, non-preserved superannuation funds. Note that there is a small number of super funds that interpret this rule differently, but there are ways to ensure that funds remain accessible.</p>
<p>TPD insurance claimants have this unique ability to treat their superannuation account like a bank account &ndash; receiving the tax, Centrelink and other benefits of having a superannuation account, while retaining the flexibility to withdraw funds when needed.</p>
<h2><span style="font-size:16px;"><strong>Summary</strong></span></h2>
<p>Giving TPD insurance claimants specific information early on can stop them taking action that is potentially financially damaging and encourage them to think about how best to maximise their claim should it be successful.</p>
<p>Recently we assisted a TPD claimant who, having had her TPD claim approved, immediately put a deposit on a home. She did not realise that over 12% of her TPD proceeds would be withheld for tax and she now has insufficient funds to settle on her house, which has caused her much stress. &nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/547/f/Andrew Reynolds.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 122px;" /></strong></p>
<p><strong>Andrew Reynolds</strong> is an ALA member and a Certified Financial Planner. Andrew assists personal injury law firms specialising in the superannuation and insurance area.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/superannuation-and-tpd-insurance-four-things-you-should-tell-every-tpd-clienthttps://www.lawyersalliance.com.au/opinion/superannuation-and-tpd-insurance-four-things-you-should-tell-every-tpd-clientThu, 04 Oct 2018 00:00:00 +1000Personal injury claims assisted by disruptive technology <h4><strong>New software converts 2D MRI scans to 3D renders</strong></h4>
<p>An innovative new software that converts 2D MRI scans to accurate 3D models is now available to personal injury lawyers in Australia.&nbsp;</p>
<p>The US-based solution has been specifically developed to aid personal injury cases. This is achieved by showing a precise demonstration of the injury as a 3D image, which can be clearly understood by all parties involved.&nbsp;</p>
<p>The technology provides a superior alternative to the historical practice of an MRI being presented to a lawyer, insurer or jury to assess independently of, or in conjunction with, a physician&rsquo;s explanation. The traditional method often relies on a high level of technical understanding of specific medical terms which can be difficult to decipher. As a consequence, it can be extremely challenging for the stakeholders concerned to comprehend what injury the plaintiff suffered as a result of an accident, and subsequently what care is required to remedy the problem. Similarly, the ancillary challenge of this method is the varying degrees of interpretation, subjectivity and bias that inevitably occur when multiple (and conflicting) entities are involved with a claim.</p>
<p>Conversely, the 3D rendering platform provides a tool that objectifies results via a true and accurate visual representation of the injury, which is verified by an internationally board-certified radiologist. The outcome is a precise, certified depiction of the injury that can be assessed without prejudice by all parties.&nbsp;</p>
<p><img alt="" src="/sb_cache/blog/id/543/f/actual patient example.jpg" style="border-width: 3px; border-style: solid; margin: 15px; width: 610px; height: 343px; float: left;" /><span style="font-size:12px;"><em>Actual patient example</em></span></p>
<p>The software solution provides a substantial opportunity to expedite a plaintiff&rsquo;s claim as well as positively contribute to the plaintiff&rsquo;s ongoing treatment plan. As such, the technology plays a crucial role in supporting patients, with clear economic and social benefits.&nbsp;</p>
<p>The 3D rendering platform is advantageous to each entity associated with the claim.</p>
<ul><li><strong><em>Court:</em></strong>
<ul><li>The 3D render eliminates or lessens litigation and/or court involvement by providing an unbiased and accurate depiction of the injury that can be universally understood by all parties; and&nbsp;</li>
<li>Should the matter proceed to court, the 3D render enables a jury to clearly understand the plaintiff&rsquo;s injuries without the need for a complex, technical explanation.&nbsp;</li>
</ul>
</li>
<li><strong><em>Lawyer:</em></strong>
<ul><li>Removes plaintiff interpretation and possible fabrication;</li>
<li>Helps promote the resolution of matters in a timely and reasonable manner;</li>
<li>Escalates resolution with insurers;</li>
<li>Enhances duty of care and lessens expenses; and</li>
<li>Provides a tool that is permissible in court.
<ul><li>helps prevent litigation&nbsp;</li>
</ul>
</li>
</ul>
</li>
<li><strong><em>Plaintiff:</em></strong>
<ul><li>Removes undue duress for a plaintiff who is legitimately hurt;</li>
<li>Empowers the plaintiff by providing a greater understanding of the injury and why the corresponding care is being provided;&nbsp;
<ul><li>increases satisfaction</li>
</ul>
</li>
<li>Lessens expenses by expediting a case; and</li>
<li>Returns a law of tort to plaintiffs that may otherwise be negatively affected.</li>
</ul>
</li>
<li><em><strong>Physician:</strong></em>
<ul><li>Helps to explain the clinical cause and can assist the physician with resolution of the issue, and can be used as part of the patient&rsquo;s ongoing care and rehabilitation treatment plan.&nbsp;
<ul><li>long-term benefits</li>
</ul>
</li>
</ul>
</li>
</ul>
<p><strong>How it works</strong></p>
<p>In Australia, JustKapital has been awarded the exclusive rights to convert 2D MRI scans to accurate 3D digital models through Multus Medical&rsquo;s software. To access:</p>
<ul><li>contact JustKapital to arrange the 2D MRI scan to be sent via a secure portal to Multus Medical;</li>
<li>Multus Medical will convert the 2D MRI scan into a 3D digital render; and</li>
<li>the 3D render will be sent back via a secure portal within 3-5 days of receipt, accompanied by an internationally board-certified radiologist&rsquo;s verification.</li>
</ul>
<p>There is a capped fee/deferred payment structure (ie. no upfront cost).</p>
<p><strong>About the provider</strong></p>
<p>Multus Medical is a leading technological provider that specialises in creating accurate, patient-specific, 3-dimensional anatomical schematics from standardised MRI data. The company was established in 2014 by established trial lawyer, David Wattel, with the explicit objective of providing personal injury lawyers a solution to address the challenge of interpreting MRI scans &ndash; which in turn often correlate with a lengthy litigation process. The platform is currently used extensively throughout the US. Following its expansion in Australia, Multus Medical will extend its reach to Europe, Canada and Asia based on existing and emerging demand. <em><a href="http://Multusmedical.com" target="_blank">Multusmedical.com</a>.</em><br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/545/f/JK final logo_rgb.jpg" style="border-width: 0px; border-style: solid; margin: 3px; float: right; width: 280px; height: 33px;" />Anthony Hersch</strong> is Chief Operating Officer of JustKapital, ASX-listed and a leading provider of financial solutions to the legal sector.</p>
<p>PHONE (02) 9696 0224; EMAIL anthony.hersch@justkapital.com.au; WEBSITE <a href="http://justkapital.com.au/disbursement-funding/" target="_blank">justkapital.com.au/disbursement-funding</a>.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/personal-injury-claims-assisted-by-disruptive-technologyhttps://www.lawyersalliance.com.au/opinion/personal-injury-claims-assisted-by-disruptive-technologyThu, 27 Sep 2018 00:00:00 +1000Why your non-dental cavities may be of interest to the authorities<p><strong>Sniffer dog indications often lead to false positives</strong></p>
<p>The stand-off is likely to be resolved in the courts, as the opponents of sniffer dog use &ndash; especially at events like dance parties and music festivals &ndash; have stated that they intend to pursue legal challenges to the use of the dogs.</p>
<p>Those opponents claim that the dogs give many &lsquo;indications&rsquo; (ie that they have sniffed drug odour in the airspace around a person) but that many of these &lsquo;indications&rsquo; do not result in any drugs being found during a physical search of the person.</p>
<p><strong>Court injunction fails to stop NSW Police denying festival entry based on sniffer dog indications</strong></p>
<p>One attempt to injunct the police in the NSW Supreme Court involved a music event, &lsquo;Above &amp; Beyond: Common Ground&rsquo; at Sydney Showgrounds over the Queen&rsquo;s birthday weekend in June 2018. The injunction application was dismissed on Friday 8 June as being &lsquo;hypothetical&rsquo;. (See <em><a href="http://www.abc.net.au/news/2018-06-08/nsw-police-drug-dog-strategy-going-ahead-above-beyond/9845346" target="_blank">NSW Police drug dog strategy at Sydney Above &amp; Beyond show to go ahead as injunction bid fails</a></em>.)</p>
<p>A further legal challenge is planned shortly.</p>
<p><strong>More charges for drug possession and supply at music festivals</strong></p>
<p>However, observers note that the quantity of drugs actually seized at the relevant functions has increased and continues to do so. Specifically, the number of charges for possession and supply at festival-type events increased in the first half of 2018. Many more young females are being detected in particular.</p>
<p>So, we have an increase in detector dog &lsquo;indications&rsquo; and fewer searches with resultant drug seizures, but actual drug quantities inside festivals are rising. What is really going on?</p>
<p>Criticism of police based on &lsquo;failed indications&rsquo; by a drug sniffer dog ignores the realities. Police understand that the type of searches they are permitted to carry out after an &lsquo;indication&rsquo; are quite limited, usually being frisk and clothing searches.</p>
<p><strong>Police likely to be given greater powers to locate concealed drugs</strong></p>
<p>There is no objective reason to believe that a dog &lsquo;indication&rsquo; is limited to drugs concealed &lsquo;on or about&rsquo; the person. Other agencies have legislation, powers and technical (including medical) support to locate drugs &lsquo;on,<strong> <em>in</em></strong>, or about the person&rsquo;.</p>
<p>The legal questions being aired now will almost certainly lead to NSW police being given identical powers. The reality is that intercepting drugs &ndash; especially locally manufactured drugs &ndash; is no longer a national border problem or a national responsibility.</p>
<p><strong>Criminals have great incentive to use all smuggling methods available</strong></p>
<p>Meanwhile, back at the music festival&hellip; Is it &lsquo;reasonable cause to suspect&rsquo; an internal concealment after a detector dog indication when no drugs are located by a search of the person and clothing? Customs officers would say &lsquo;yes&rsquo;. But they have the legislative and operational powers and support to perform an internal search.</p>
<p>The question to ask is why wouldn&rsquo;t a criminal syndicate use traditional smuggling techniques to get a very profitable shipment inside a festival, when there is so little chance of being caught, even if a drug detector dog reacts to the carrier?</p>
<p><strong>Increasing use of females as internal carriers of drugs</strong></p>
<p>A recent police interception followed additional intelligence regarding females being used as internal carriers. That intelligence was rewarded by one seizure (among others) that was detected by traditional policing methods: a male was overheard coercing a female to do such a carry outside a party, which resulted in a domestic matter as she resisted.</p>
<p>If this conversation had not been overheard, it may have resulted in a successful internal carry beyond the police cordon. Smugglers will try all methods in the hope of succeeding in this environment. (For an explanation of body cavity searching of drug mules &ndash; &lsquo;stuffers&rsquo; and &lsquo;swallowers&rsquo; &ndash; see <a href="https://www.popsci.com.au/science/fyi-how-much-cocaine-can-you-fit-in-your-ahem-body,379473" target="_blank"><em>FYI: How Much Cocaine Can You Fit In Your, Ahem, Body?</em></a>)</p>
<p><strong>Persons in custody likely to face medical examinations in future</strong></p>
<p>The NSW legislation regarding full body cavity searching is still legally and personally complex. But it is the only effective method to detect actual internal concealment of considerable quantities of drugs.</p>
<p>There will probably be a series of increasingly serious steps for persons in custody, leading to eventual medical examinations (x-ray, ultrasound or invasive) to determine if anything is being concealed internally.</p>
<p><strong>Criminal lawyers and their clients may need to adjust to a changing legal landscape quickly</strong></p>
<p>While the NSW government looks into the cavity situation, criminal lawyers will need to develop a response to new legislation and police powers.</p>
<p>Internal cavity smuggling is not new. In NSW body cavity searches are authorised in some areas &ndash; for example, in prisons. In Australia some spectacular detections have been made.</p>
<p>In September 2016, the Australian Federal Police reported that they had charged a man travelling from Thailand to Australia who attempted to smuggle 1100 grams of cocaine internally. The drugs had an estimated street value of around $500,000 at the time, based on quantity and purity. (See <a href="https://www.afp.gov.au/news-media/media-releases/man-arrested-internal-importation-cocaine" target="_blank"><em>Man arrested for internal importation of cocaine</em></a>.)</p>
<p>The NSW government have passed legislation to deal with internal drug concealments previously, in the form of the <a href="https://www.legislation.nsw.gov.au/#/view/act/2001/31/full" target="_blank"><em>Police Powers (Internally Concealed Drugs) Act 2001</em> (NSW)</a>&nbsp;(which was repealed on commencement of Schedule 3 to the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/leara2002451/" target="_blank"><em>Law Enforcement (Powers and Responsibilities) Act 2002</em> (NSW)&nbsp;</a>on 1 December 2005).</p>
<p>In the event that new legislation permitting searches for internally concealed drugs is passed in NSW, criminal lawyers and their clients will have to adjust to a changing legal landscape very quickly.</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/criminal-law/why-your-non-dental-cavities-may-be-of-interest-to-the-authorities/" target="_blank">here</a>.</em></p>
<p><a href="https://www.stacklaw.com.au/people/john-gooley/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=cavities" target="_blank"><strong><img alt="" src="/sb_cache/blog/id/541/f/JohnGooleyTwo.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 124px;" />John Gooley</strong></a>&nbsp;is a lawyer practising across <a href="https://www.stacklaw.com.au/service/personal/challenges/criminal-law/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=cavities" target="_blank">criminal</a>, family and employment law and associated commercial matters at <a href="https://www.stacklaw.com.au/location/hornsby/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=cavities" target="_blank">Stacks Collins Thompson</a>. He enjoys Legal Aid briefs and duty work, as well as defended hearings, special fixtures and severity appeals. John has experience in the regulation of advertising and its content, NSW local government planning and licensing and CTTT matters, as well as HREOC and NSW ADB actions. He has wide-ranging experience in both the federal and state employment jurisdictions, and is a life member of the NSW Public Service Professional Officers Association. John served with the 1st Commando Regiment as a young man, and is now a member of and legal adviser to the 1st Commando Regiment Association. He spent many years in federal law enforcement, intelligence and legal areas including drug, crime, revenue fraud and money laundering matters, in both the federal and state jurisdictions, before entering private practice in 2002.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/why-your-non-dental-cavities-may-be-of-interest-to-the-authoritieshttps://www.lawyersalliance.com.au/opinion/why-your-non-dental-cavities-may-be-of-interest-to-the-authoritiesThu, 20 Sep 2018 00:00:00 +1000Building an inclusive and responsible credit system in Australia: Three lessons from the UK<p>The Government&rsquo;s response in November 2016 to the review of payday lending and consumer lease laws was considered a good start in further supporting Australians struggling to make ends meet. Unfortunately, nearly two years after the Government&rsquo;s response, the laws remain unchanged. This example shows that legislative reform should not be relied upon as the only tool to improve access to affordable and appropriate credit for consumers.&nbsp;</p>
<p>Australia has similarities to the UK in its approach to this issue: both jurisdictions have similar laws regulating the sale of credit and a growing problem of poor access to credit for disadvantaged consumers. But the UK is showing strong leadership in building momentum for change, with Theresa May pledging a commitment to make Britain &lsquo;a country that works not for a privileged few, but for every one of us&rsquo;.</p>
<p>Theresa May&rsquo;s commitment prompted me to research the UK&rsquo;s approach to building an inclusive and responsible credit system. With support from the Ascham Leadership Scholarship, I travelled to the UK to meet with experts in this area. This article shares three successful initiatives&nbsp;which are used, in conjunction with law reform, to improve access to credit for UK consumers.</p>
<h2><span style="font-size:16px;">What is the problem?</span></h2>
<p>Credit plays an important role in smoothing a person&rsquo;s expenditure and protecting against income shocks. It is also a key determinant of a consumer&rsquo;s wellbeing. An inability to access appropriate credit can place people in financial hardship, increase their vulnerability to risky financial products and negatively affect their social, emotional and health outcomes.</p>
<p>Unfortunately, a significant proportion of the Australian population is excluded from accessing credit that is affordable and appropriate for their needs, often turning instead to high-cost credit products.</p>
<p>In Australia, the most common forms of high-cost credit are Small Amount Credit Contracts (SACCs), commonly known as payday loans, and consumer leases, which are contracts to rent an item for a period of time. These products are generally used by low and middle-income consumers. For example, many of the consumers who use SACCs are excluded from mainstream forms of credit, with up to 25% of those borrowers having incomes below the poverty line. In the UK, over three million consumers use high-cost credit, including payday loans and consumer leases.</p>
<h2><span style="font-size:16px;">How is the UK improving access to affordable credit?</span></h2>
<p><strong>Lesson one: There are innovative and effective partnerships</strong></p>
<p>There is a belief in the UK that supporting fairer credit for all requires collaboration in designing new systems.&nbsp;</p>
<p>This belief is at the heart of the Supported Rent Flexibility initiative, delivered by the Centre for Responsible Credit, Well Thought and Optivo Housing Association. The pilot provided a group of Optivo&rsquo;s social housing tenants with the opportunity to set up a personalised schedule of rent payments, allowing them to underpay and overpay on their rent at different points in the year. The pilot was designed to test if allowing tenants to tailor their rent payments based on their own knowledge of likely pressure points over the year could make it easier for people to pay their rent, without recourse to credit.</p>
<p>Results from a recent evaluation show a reduction in the use of credit to meet essential needs, an improvement in living standards and less money worries for tenants. Some tenants participating in the pilot reported an improvement in their physical and mental health, as well as in their ability to take control of their finances and plan ahead.</p>
<p><strong>Lesson two: A variety of sources prioritise access to sustainable capital for alternative credit providers</strong></p>
<p>The UK recognises that diversifying the market for affordable and appropriate credit requires reliable investment in socially minded credit providers. The Fair By Design Fund, which invests in companies with a social interest mandate, is one initiative evidencing this culture. The UK government&rsquo;s 2018 commitment to funding financial inclusion initiatives with 55 million pounds from dormant bank accounts is another example.</p>
<p>This support of fair finance has led to the rise of a number of not-for-profit credit providers in the UK. Fair For You, a not-for-profit providing affordable credit to finance the purchase of essential items by low-income households, is a welcome challenger to the consumer lease industry in the UK. A recent evaluation shows that the total cost of goods is much lower when purchased through Fair For You, with an average saving of at least &pound;527 (AUD $950) per item when compared with mainstream consumer lease providers.</p>
<p><strong>Lesson three: The UK&rsquo;s Minister for Financial Inclusion improves accountability &nbsp;&nbsp;</strong></p>
<p>Financial inclusion for all UK consumers has been on the agenda for the past 20 years, culminating in the Financial Inclusion Commission in 2015.&nbsp;</p>
<p>The Commission is an independent campaigning body made up of parliamentarians and experts, aiming to promote financial inclusion on the public policy agenda. To foster leadership in this area, the Commission recommended that the UK designate a senior minister as the government lead on financial inclusion, and establish a ministerial champion for financial inclusion in each interested department.&nbsp;</p>
<p>In response to these recommendations, in 2017 the government appointed a minister for pensions and financial inclusion. In 2018, the government established a Financial Inclusion Policy Forum, chaired by the minister for pensions and financial inclusion, which brings together government, consumer groups, industry and the regulators. The Forum&rsquo;s mission is to ensure that people, regardless of their background or income, have access to useful and affordable financial products.</p>
<p>While it is too soon to evaluate the success of these initiatives, consumer groups are optimistic that leadership from the government will ensure accountability, coordination and progress.</p>
<h2><span style="font-size:16px;">Conclusion</span></h2>
<p>Legislative reform is an essential tool to protect consumers from unfair lending practices. However, developing an inclusive and responsible credit market requires initiatives beyond law reform. With the Banking Royal Commission due to release its interim report in September, now is the time for Australia to reflect on what similar jurisdictions, like the UK, are doing to make sure that the poor do not pay more for credit.</p>
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<p><strong><img alt="" src="/sb_cache/blog/id/539/f/DanaBeiglari.jpeg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 146px;" />Dana Beiglari</strong> started her career as a lawyer at the commercial law firm, Allens. Her passion for social justice law led her to Legal Aid NSW. Dana is a Senior Solicitor in the Consumer Law practice group. Her team of 10 solicitors assists some of the most vulnerable people in NSW to access their consumer protection rights in credit and insurance matters. Dana was recently awarded the Ascham Leadership Scholarship to research initiatives used overseas to improve access to affordable and suitable credit for disadvantaged consumers.</p>
<p><em>The views in this article are the writer&#39;s own, and do not reflect the views of Legal Aid NSW.</em></p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/building-an-inclusive-and-responsible-credit-system-in-australia-three-lessons-from-the-ukhttps://www.lawyersalliance.com.au/opinion/building-an-inclusive-and-responsible-credit-system-in-australia-three-lessons-from-the-ukThu, 13 Sep 2018 00:00:00 +1000Work deaths in Australia top 92 for 2018<p>The Darwin Awards, an annual collection of bizarre global fatalities celebrating those that &lsquo;improve our gene pool by removing themselves from it&rsquo;, may make for comical reading. But there is nothing to laugh about when it comes to the 92 workers in Australia who have lost their lives so far in 2018.</p>
<p>Workers have been crushed, electrocuted, mutilated and incinerated this year, succumbing to agonising injuries and leaving behind a litany of grieving families. Their deaths are often a reflection on the poor occupational health and safety (OHS) standards applied by employers.&nbsp;</p>
<p>According to research from official nationwide Safe Work figures compiled by <a href="https://www.australian-accident-helpline.com.au/" target="_blank">Australian Accident Helpline</a>, the postal, farm, construction and fishing industries are once again in the front lines when it comes to fatalities.</p>
<p>Australian Accident Helpline managing director Liam Millner said that these incidents highlight the all too frequent and avoidable deaths and injuries resulting from OHS complacency on behalf of businesses, whose reputations are damaged as a result.</p>
<p>&lsquo;Research has shown that companies tarnished with health and safety breaches that lead to death or serious injury of people within their area of responsibility, suffer the consequence of failing to secure future contracts,&rsquo; Mr Millner said.</p>
<p>The latest preliminary Safe Work records reveal that, in the first nine months of 2018, 27 agricultural, forestry and fisheries workers and 27 workers in the transport, postal and warehousing sectors were killed while on duty. This compares to 28 deaths in the agricultural, forestry and fisheries sectors and 43 in the transport, postal and warehousing sectors during the same period of 2017.&nbsp;</p>
<p>The construction industry has recorded 18 fatalities this year, compared to 26 in the corresponding period last year, and manufacturing&rsquo;s seven deaths for 2018 compares to just two for the same period of 2017. Education and training, financial and insurance services and health and social assistance have an unblemished record for 2018.</p>
<p>So far, the only state and territory to confirm no work-related fatalities for 2018 are Tasmania and the Northern Territory. Queensland has recorded six deaths, and Victoria 16. New South Wales has confirmed workplace deaths for 2018 but without releasing official figures. In South Australia, SafeWork SA is investigating seven worker fatalities for 2018; four of which were farm-related. In Western Australia the toll climbed to seven following the death of a Rio Tinto worker on a Pilbara mine on 16 August. There have been two work-related deaths in the ACT for 2018, one as a result of a motor vehicle accident involving a work truck and the other relating to an explosion in a workplace motor vehicle.</p>
<p>Safe Work Australia described fatality rates in the agricultural sector as &lsquo;high&rsquo;, reflecting 14.6 deaths per 100,000 workers, and said &lsquo;there has been no dramatic improvement in the last ten years&rsquo; in the sector.</p>
<p>Last year a (preliminary) total of 118 Australian workers were killed and Safe Work said the sheep, cattle and grain farming sub-sectors accounted for most of the serious claims, with the forestry and farm worker and transport, postal and warehousing sectors combining for the vast majority of deaths. One in every four worker fatalities involved the use of a vehicle.</p>
<p>&lsquo;Serious claim rates are high with 8.8 serious claims per million hours worked,&rsquo; Safe Work said. &lsquo;However, the rates have decreased by 30% over the last decade. In line with the older demographic of the industry, older workers account for the majority of worker fatalities. However, younger workers recorded the highest serious claim frequency rates.&rsquo;</p>
<p>The biggest fine handed out this year for a workplace fatality was $500,000 in the Melbourne County Court in February to Specialised Concrete Pumping Victoria, for the death of a worker struck by tubing weighing two tonnes. The tubing slid off a forklift and struck the 28-year-old, who died on the scene.</p>
<p>In second spot is Co-Wyn Building Contractors, which pleaded guilty in the Sydney District Court and was fined $405,000 for failing to protect workers following an incident which cost the life of a carpentry apprentice. The second-year apprentice fell while building a walkway platform on a Strathfield construction site. He had been unsupervised and was performing this type of work for the first time.&nbsp;</p>
<p>Ambulance Victoria was fined $400,000 in March for failing to adequately record and store stocks of morphine and fentanyl following the death of a paramedic. The cause of death was mixed drug toxicity and Ambulance Victoria was found culpable for failing to minimise the potential for access to the drugs.</p>
<p>Concreting contractor Phelpsys Constructions was fined $350,000 in the Melbourne Magistrate&rsquo;s Court in March for its lack of safety oversights which led to the death of a client&rsquo;s son, who was killed when operating the company&rsquo;s earthmoving equipment. The 37-year-old man drove the skid steer to level a nature strip and was found dead in the operator&rsquo;s seat, with the safety bar not in position and the bucket raised.</p>
<p>The largest fine handed out by a court in Western Australia for serious safety breaches so far this year was $327,500 to FGS Contracting, including a $102,500 penalty to a company director, for debilitating injuries suffered by a 17-year-old labourer on a farm in Esperance. The teenager had climbed a ladder without a helmet while the company director, Ryan Franceschi, was driving a telehandler. Franceschi alighted while the telehandler was still operating which caused a large steel truss to fall, inflicting severe skull, jaw, shoulder and chest injuries on&nbsp;the teenager. He did not have the required construction training certificate.</p>
<p>Fatal incidents involving farmers and their workers being crushed by tractors, or caught between trailers and farm vehicles, are once again prominent in 2018. In Victoria alone, the number of farm-related fatalities in the year to August totalled seven out of 13 workplace deaths, an average of one per month.</p>
<p>In May, a Shepparton fruit packaging company was fined $150,000, increased from $50,000 on appeal, after a backpacker who was cleaning and operating a conveyer belt was scalped when her hair was caught in a drive shaft. The woman suffered &lsquo;horrific injuries&rsquo; and the court established that she had been expected to clean the conveyer belt while it was operating.&nbsp;</p>
<p>&lsquo;The time or cost saved by not powering down is never worth the horrific injuries that could occur, and did in fact occur on this occasion,&rsquo; WorkSafe Victoria said.</p>
<p>In construction, falls from heights continued to recur as a common injury and fatality feature in Victoria, a state still reeling from 27 construction worker deaths in 2017, its highest for six years.</p>
<p>In March, SafeWork NSW launched a week-long forklift safety blitz after three workers were killed, expanding an already grim forklift injury list numbering 1,355 workers between 2014 and 2016, which cost the NSW workers&rsquo; compensation system more than $30.5 million.</p>
<p>WorkSafe Queensland revealed that since 2012 an average of 430 workers&rsquo; compensation claims had been made for injuries in forklift-related incidents. During the same period 137 incidents involving workers or bystanders being struck or run over by forklifts were recorded. Two were fatal and 88 people were seriously injured.</p>
<p>One of the most tragic accidents involving children this year was in Queensland, where a six-year-old student suffered leg and skull fractures and bleeding on the brain after coming out of a toilet block and being hit by a golf buggy. This brought the number of people hit or crushed by a mobile plant in education to 36 since 2012, and to 1447 across all industries. Of these, 115 died and 981 were seriously injured.</p>
<p><em>A version of this article first appeared on the Australian Accident Helpline blog, and can be found <a href="https://www.australian-accident-helpline.com.au/blog/work-deaths-in-australia-tops-83-for-2018/" target="_blank">here</a>.</em></p>
<p><img alt="" src="/sb_cache/blog/id/537/f/Dale Granger (002).jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 135px;" /></p>
<p><strong>Dale Granger</strong> is writer at <a href="http://www.australian-accident-helpline.com.au/" target="_blank">Australian Accident Helpline</a>, a national compensation firm that specialises in personal injury.</p>
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<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/work-deaths-in-australia-top-92-for-2018https://www.lawyersalliance.com.au/opinion/work-deaths-in-australia-top-92-for-2018Thu, 06 Sep 2018 00:00:00 +1000Beware of failing to establish the inferential reasoning required for causation <p><strong><a href="https://archive.sclqld.org.au/qjudgment/2018/QCA18-182.pdf" target="_blank"><em>Inghams Enterprises Pty Ltd v Kim Yen Tat </em>[2018] QCA 182</a> &ndash;&nbsp;</strong><strong>Bond J with Gotterson and Morrison JJA agreeing</strong></p>
<p>The plaintiff was successful before the trial judge in her claim for sustaining a psychiatric injury after being accosted in a car park by a former employee late at night, after finishing her shift. The car park was controlled by the plaintiff&rsquo;s employer and had a security guard, albeit at the entrance to the business premises of the car park. The security guard did not have a view of the car park but was assisted by CCTV cameras and some lighting.</p>
<p>It was usual for female workers to leave late at night and sometimes early in the morning after their shifts to collect their cars, be picked up or walk to the train station. It was also not uncommon for some to stay behind to chat or smoke.&nbsp;</p>
<p>There had not been any incidents in the car park involving assault in the 12 years before the claim.&nbsp;</p>
<p>The assault came about after a former employee, Aaron Brain, showed up at the car park. He was initially recognised by a former co-worker with whom he spoke, together with another worker. Later that night Brain approached three separate female workers and asked for fictitious assistance. He was not known to any of the three women.</p>
<p>Then Brain approached the plaintiff, who also did not know him. Brain&rsquo;s story to the plaintiff was that he had a pregnant partner who needed help, and he asked her to come to his car and show him where the train station was. The plaintiff declined, walked to her car and got into the driver&rsquo;s seat. Before the plaintiff could close the door Brain asked for a hug and tried to put his hand around her neck. The plaintiff pushed away his hand, got out of the car and ran away screaming.</p>
<p>Justice Bond stated that the starting point is the consideration of the statutory provisions in ss305B-305E of the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/wcara2003400/" target="_blank"><em>Workers&rsquo; Compensation and Rehabilitation Act 2003</em> (Qld)</a>, which are analogous to ss9-12 of the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/cla2003161/" target="_blank"><em>Civil Liability Act 2003</em> (Qld)</a>.</p>
<p>In issue was causation; namely, if one of the three workers who had been approached prior to the plaintiff had informed the security guard of Brain&rsquo;s conduct, including by phone, the plaintiff&rsquo;s injury would have been prevented.</p>
<p>Justice Bond was critical of the failure of the trial judge to engage with the statutory test [50] referring to <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2012/5.html?stem=0&amp;synonyms=0&amp;query=title(woolworths%20and%20strong%20)" target="_blank"><em>Strong v Woolworths Ltd </em>(2012) 246 CLR 182</a> at [18]-[27]; cited in a similar context by Jackson J in <a href="https://archive.sclqld.org.au/qjudgment/2016/QSC16-079.pdf" target="_blank"><em>Stokes v House With No Steps</em> [2016] QSC 79</a> at [142] and also in <a href="https://archive.sclqld.org.au/qjudgment/2017/QCA17-103.pdf" target="_blank"><em>The Corporation of the Synod of the Diocese of Brisbane v Greenway</em> [2017] QCA 103</a> at [38]-[41].&nbsp;</p>
<p>Justice Bond found the trial judge erred by not engaging with the evidence of the workers who had been approached, and concluded that the failure to provide adequate reasons as to how the injury could have been avoided was an error of law: <a href="https://archive.sclqld.org.au/qjudgment/2009/QCA09-066.pdf" target="_blank"><em>Drew v Makita (Australia) Pty Ltd </em>[2009] 2 Qd R 219</a> at [57].</p>
<p>Justice Bond applied the High Court authority per Gageler J in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2014/52.html" target="_blank"><em>Henderson v State of Queensland </em>(2014) 255 CLR 1 </a>at [87]-[91] and Gordon J in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/2.html" target="_blank"><em>Re Day </em>(2017) 340 ALR 368 </a>at [18] as to the requisite standard of inferential reasoning when direct proof is not available.&nbsp;</p>
<p>Two of the workers did not give evidence at the trial and as a consequence their police statements were relied upon at trial. The workers both expressed a degree of fear and apprehension; critically, the conduct occurred outside of the car park and on the way to the train station. There was no evidence as to whether the workers had associated Brain&rsquo;s conduct with making a complaint to the security guard and/or their employer. There was also no evidence that they had mobile phones or would have reported the incidents before the plaintiff&rsquo;s assault.</p>
<p>The third worker who gave evidence on this point said that she felt a little bit scared while she was in the car park. Importantly, she thought she had received training to report such matters but did not think that Brain&rsquo;s conduct was sufficiently worrisome to be concerned.&nbsp;</p>
<p>Justice Bond considered that even if the security guard was informed, there was insufficient evidence to legitimately infer that the security guard would then have left and found Brain.&nbsp;</p>
<p>His Honour further considered the scenario of the security guard finding Brain and asking him to leave. His Honour was not persuaded this would have occurred or that Brian would not have returned once the security guard&rsquo;s attention was drawn elsewhere.&nbsp;</p>
<p>Unsurprisingly, Bond J found that factual causation was not established, and there was no basis to find that the case was &lsquo;exceptional&rsquo; within the meaning of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/wcara2003400/s305d.html" target="_blank">s305D(2)</a>. The appeal was upheld and the claim dismissed with judgment for the defendant.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/535/f/David Cormack.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 126px;" />David Cormack</strong> practised as a solicitor for ten years before being admitted as a barrister in 2003, initially as In-House counsel for WorkCover Queensland. In 2009, David moved to the Private Bar and is briefed on personal injuries, occupational health and safety, industrial relations, employment law, mental health, mediations and restorative practices. David is a contributor to The National Work Health and Safety Law and Court Forms, Precedents &amp; Pleadings Qld (Insurance; Discontinuance &amp; Dismissal / Principles &amp; Practice) subscriptions (LexisNexis). David maintains a <a href="https://www.barristerdirect.com.au/" target="_blank">web page</a> and <a href="https://www.barristerdirect.com.au/blog/" target="_blank">blog</a>, providing <a href="https://www.barristerdirect.com.au/about/2907-2/" target="_blank">newsletters</a> to <a href="https://barristerdirect.us5.list-manage.com/subscribe?u=2f5ccdb8c5858f2302e4baf10&amp;id=a5bb9cdfc6" target="_blank">subscribers</a> and has launched a free &lsquo;<a href="https://www.barristerdirect.com.au/apps/" target="_blank">App</a>&rsquo; for calculating future losses of income on the 3 and 5% actuarial Tables, together with superannuation. Recreationally, David enjoys cycling for charity events and competing in kayaking. David volunteers with the Wynnum Redlands Canoe Club. David practices pro bono restorative justice via the <a href="http://sycamorevoices.org/" target="_blank">Sycamore Tree Project</a> with Prison Fellowship Australia (QLD).</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
https://www.lawyersalliance.com.au/opinion/beware-of-failing-to-establish-the-inferential-reasoning-required-for-causationhttps://www.lawyersalliance.com.au/opinion/beware-of-failing-to-establish-the-inferential-reasoning-required-for-causationThu, 30 Aug 2018 00:00:00 +1000Financial capacity meets the real world<p>The personal injury settlement that you achieve for your client goes only part of the way to determining their financial future. Arguably far more important is the determination on your client&rsquo;s financial capacity and the guidance you provide about the relevant options in this regard.</p>
<p>Your role in guiding your clients in relation to their financial management options is vital. It is illustrated in the examples below, which are based on real client scenarios (with clients&rsquo; names and some details changed to protect their privacy).</p>
<h2><span style="font-size:16px;"><strong>Child with no capacity</strong></span></h2>
<p>Amelia is only six years old. Her parents are devoted to her care and welfare. Prior to settlement, you introduced them to a couple of trustee companies and they selected one. That trustee company&rsquo;s fees are reasonable, and its service is consistently good. There is regular telephone communication. In annual in-home meetings, Amelia&rsquo;s parents are consulted and kept informed about the financial strategy and investments. They don&rsquo;t need to worry about the money and can focus on looking after Amelia.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Give your clients choice.</li>
<li>Help them to identify a good trustee company with reasonable fees and good service.</li>
</ul>
<p>&nbsp;</p>
<p>Sam&rsquo;s parents have never had any money. They were unhappy to hear that they would have to deal with a trustee company. They regularly come up with new ideas for spending Sam&rsquo;s money and put them to Sam&rsquo;s trustee. Attempting to extract money from the trustee has become a bit of a playful game but, overall, they are glad to know that Sam&rsquo;s money is in good hands.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Understand that a trustee company&rsquo;s role is not easy.</li>
<li>Trustee companies walk a fine line, saying no when appropriate, yet ensuring that clients and family are heard and treated with respect.</li>
</ul>
<p>&nbsp;</p>
<p>Erin&rsquo;s mother found the whole settlement and sanction process a blur. She was introduced to a trustee company representative, then suddenly, the whirlwind was over. No one would return her calls and she felt lost. Investment statements posted to her in the mail made no sense. She eventually made enquiries with her lawyer about changing trustee company. She was surprised that instead of receiving an apology and better service, her existing trustee company hired a lawyer and barrister to resist the proposed change. Her efforts to change trustee were ultimately successful, but extremely expensive and disheartening.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Arm your clients with some good questions to help them to select a trustee company.</li>
<li>Families should ask what information they will be entitled to receive, and what happens if the relationship with the trustee company breaks down.</li>
</ul>
<h2><span style="font-size:16px;"><strong>Adult with no capacity</strong></span></h2>
<p>Annie is in a wheelchair with a mild brain injury. She lives with her husband and their daughter. Her relationship with her husband is strained, as he is an alcoholic. Annie has arranged with the trustee company that they will pay all bills and that no cash reimbursements will be made to her husband. She knows that her settlement funds are safe and carefully managed.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Clients sometimes value having their funds protected from other family members.</li>
</ul>
<p>&nbsp;</p>
<p>Simi&rsquo;s sister is his primary carer. She grumbles about not having been appointed to look after his money. She thinks that building a holiday resort would be a much better use of his funds than his current conventional investments. Every year, Simi&rsquo;s trustee and financial adviser visits and explains, again, as clearly and as kindly as possible, the nature and benefits of the current investments and how they serve Simi&rsquo;s best interests.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Trustee companies will do their best, if appropriate, to accommodate client or family investment preferences.</li>
<li>But prudent well-diversified investments are a must.</li>
</ul>
<p>&nbsp;</p>
<p>Jake has had a tough life and his brain injury makes him especially volatile. He has been unable to keep down a job, and unfortunately relations have broken down with all of his family members. He currently has a girlfriend and she is pregnant, but the relationship is unstable.&nbsp;</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Private trustee companies are not well placed to take on all clients.</li>
<li>The Public Trustee can sometimes be the right option.</li>
</ul>
<h2><span style="font-size:16px;"><strong>Borderline capacity&nbsp;</strong></span></h2>
<p>Before his bicycle accident, Ben used to be in marketing. He was a highly paid professional. Ben recognises that his short-term memory problems and impulsiveness could land him in trouble. He was enthusiastic about the appointment of a trustee company. Although the medical evidence regarding the extent to which he could manage his own money was borderline, the orders were made. Ben enjoys annual meetings with the trustee company and financial adviser. It&rsquo;s a load off his mind. He has no intention of ever seeking to remove the orders.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Many clients really enjoy the benefits of having professionals look after their financial affairs.</li>
<li>Even if they feel they have regained financial capacity, many clients would continue the arrangement.</li>
</ul>
<p>&nbsp;</p>
<p>Ruby&rsquo;s accident and physical disabilities severely affected her social confidence. Aged 19, she is very shy and na&iuml;ve. The medical evidence on capacity was not clear. One doctor said she did not have capacity, due to her vulnerability to being exploited. Another said she had capacity. A third said that she would have capacity if she completed a course to learn financial skills. In the end, the evidence went to the judge who put a short-term protective order in place, to be reviewed within five years. Her mother was appointed financial manager and she engaged a financial adviser. Ruby&rsquo;s adviser is keen to educate Ruby as part of the advice process.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>The evidence on financial capacity from doctors is not always clear, consistent or practical.</li>
<li>Short-term orders can enable financial skills to be learned.</li>
</ul>
<p>&nbsp;</p>
<p>Arun&rsquo;s settlement approval was badly mishandled. The barrister on the day thought he was a minor, but in fact he had turned 18. Orders mistakenly directed his funds to the Public Trustee. Months passed before Arun&rsquo;s mother realised something was wrong. She tried to engage with the Public Trustee but made no progress, perhaps as her English was not fluent. After repeated requests for assistance, she was sent long and complicated forms that were not relevant to her son&rsquo;s situation. She was told that no funds would be made available for legal advice to rectify the problem.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Don&rsquo;t underestimate the difficulties and hostility encountered in the public system.</li>
<li>There is a world of difference between private and public trustees.</li>
</ul>
<h2><span style="font-size:16px;"><strong>Clear capacity</strong></span></h2>
<p>Joe was injured in a car accident and received compensation. His lawyer sent him a cheque but provided no advice as to how to manage it. Joe put the money in the bank, where it is slowly being depleted by inflation and tax. He now wishes his lawyer had pointed him in the right direction.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Your clients rely on you to guide them.</li>
<li>They would value and benefit from the opportunity to see an expert to hear about their options.</li>
</ul>
<p>&nbsp;</p>
<p>Mary&rsquo;s compensation was substantial. She thought that her boyfriend&rsquo;s plan to open a gym was a great opportunity and that her investment would deliver work for them both. But the gym failed and so did the relationship. Mary&rsquo;s long preclusion period meant she was left with no money, feeling bitter and resentful.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>Your clients may not take up your suggestion of professional financial advice.</li>
<li>But documenting your communication and discussions may protect you down the track if things go awry.</li>
</ul>
<p>&nbsp;</p>
<p>Sam took his lawyer&rsquo;s advice to meet with an accountant before settlement. His accountant suggested an agricultural scheme to minimise tax. Only later did Sam hear from a friend that he had missed the time-limited opportunity to invest tax-free using super. He was deeply disappointed to have been advised to go down the wrong path.</p>
<h4><span style="font-size:14px;"><em>Lessons:</em></span></h4>
<ul><li>There are some very specific investment opportunities involving super for personal injury compensation recipients.</li>
<li>Do some due diligence so that you can recommend someone appropriate.</li>
</ul>
<h2><span style="font-size:16px;"><strong>Conclusion</strong></span></h2>
<p>Managing a lump sum of money is not an easy task. Our financial systems are complex and community levels of financial literacy are low. We often cannot trust ourselves, or our families, or indeed our large financial institutions.</p>
<p>Our protective systems of administration and financial management are not perfect, but they try to get the balance right between delivering protection and respecting people&rsquo;s autonomy. Accordingly, not everyone who needs protection gets it. Also, not everyone within the protective system gets the service they deserve.</p>
<p>But, overall, you have a range of good options available to deliver good financial outcomes for your clients. Your role is vital in making the system work. Your proactive help and guidance will go a long way to ensuring that your client&rsquo;s settlement delivers long-term financial security and peace of mind.<br />
<br />
<em>This article&nbsp;was first published in the Mar/Apr&nbsp;2018&nbsp;edition of Precedent&nbsp;focusing on legal capacity.</em></p>
<p>&nbsp;</p>
<p><img alt="" src="/sb_cache/blog/id/533/f/Jane Campbell pic.png" style="border-width: 0px; border-style: solid; margin: 3px; float: left; width: 150px; height: 150px;" /><strong>Jane Campbell</strong> is the Principal of <a href="http://www.aeran.com/" target="_blank">Aeran Pty Ltd</a>, an independent financial advice business that specialises in financial advice to plaintiffs. Jane has more than 25 years&rsquo; experience in injury compensation, starting out in workers compensation, then insurance litigation, then lobbying to improve tax outcomes for plaintiffs. For the past 14 years Jane has been providing financial advice to seriously injured plaintiffs. Jane is a Certified Financial Planner and maintains her qualifications as a lawyer. She partners with Australian Executor Trustees Limited in cases where a trustee company is required. Jane has been a member of the ALA since 1999 and is a current NSW Committee member. She is actively involved in seeking to protect the rights of injured people. Jane lives in Sydney with her husband and two sons.&nbsp;&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article</strong></a></p>
<ul>
</ul>
https://www.lawyersalliance.com.au/opinion/financial-capacity-meets-the-real-worldhttps://www.lawyersalliance.com.au/opinion/financial-capacity-meets-the-real-worldThu, 16 Aug 2018 00:00:00 +1000Language barriers, informed consent and interpreters in medical care<p>As a multicultural society, Australia hosts a rich variety of cultures, languages, religions and ethnicities. The 2016 census figures confirm our extraordinarily diverse cultural and linguistic composition. Around 18 million of the 24 million Australian residents speak English. However, there are 820,000 Australian residents who described their English proficiency as &lsquo;poor&rsquo;, and a further 193,000 who are not proficient in English. Across the country, 16% of the population does not speak English at all or well&nbsp;and in Sydney, Melbourne and Adelaide this proportion is closer to 18%.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a> &nbsp;</span></p>
<p>This article highlights the pitfalls that occur when patients and healthcare providers are unable to understand each other due to language barriers,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[2]</a></span>&nbsp;and what&nbsp;can and should&nbsp;be done in such situations to facilitate effective communication.&nbsp;</p>
<p>A seemingly obvious solution to the difficulties presented by language barriers is the use of an interpreter. Unfortunately, the assumption that all interpreters are equally skilled, and that by engaging an interpreter informed consent can be presumed, is incorrect.</p>
<p><strong>Potential pitfalls with interpreters</strong></p>
<p>It is imperative that an interpreter is a &lsquo;competent interpreter&rsquo; who is accredited by appropriate governing bodies. A high level of bilingualism, while an essential quality of a competent interpreter, does not by itself ensure the ability to interpret.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[3]</a></span>&nbsp;A competent interpreter is knowledgeable on issues related to ethics, standards of practice, confidentiality and the role of the interpreter, as well as having proficiency in English and the non-English language, including knowledge of specialised medical terminology in both languages.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[4]</a></span></p>
<p>It could amount to negligence when a family member is used as an interpreter for serious medical procedures. This is because family members, friends and especially minor children are often not competent interpreters; they do not always interpret accurately and are prone to omissions, additions, substitutions and volunteered answers.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[5]</a></span></p>
<p>Further, an interpreter who is a family member might have an agenda that is in opposition to the patient&rsquo;s needs or desires. For instance a patient might not want to go ahead with a termination, or may not want to undergo an invasive procedure, but the husband or adult children who are interpreting might want a different outcome and use their role as the interpreter&nbsp;to&nbsp;manipulate the situation. In the case of child interpreters, they are unlikely to understand complex medical terminology or fully comprehend what is happening in more &lsquo;adult&rsquo; situations&nbsp;and are therefore often unable to interpret the required information to an acceptable standard.</p>
<p>It is further important that the interpreter who is appointed speaks the dialect of the patient. In some circumstances dialects vary, particularly when the language is not widely spoken. For instance, if a person identifies as Chinese, they may speak Cantonese, Mandarin or any of the other dialects. This variation in dialects can cause issues. For example, a patient that is Somalian but speaks some conversational pidgin Arabic might be paired with an Arabic speaker as an interpreter. The healthcare provider assumes it has discharged its obligation by engaging an interpreter who speaks the same language as the patient, but the patient and interpreter cannot understand each other due to differences in dialect.</p>
<p>Cultural sensitivities between genders and warring ethnic groups should also be borne in mind where practicable when engaging an interpreter. The cultural bias of the interpreter may influence the way in which information is relayed between interpreter and patient, or a patient may be uncomfortable with the use of an interpreter from a particular region or background, thereby losing the effectiveness of the information being conveyed.&nbsp;</p>
<p>Where possible, if the elements of a medical procedure are verbally translated into the patient&rsquo;s language the same information should also be provided in their language in writing. It is important for the patient to be able to walk away with information to digest (this could include an educational video in the patient&rsquo;s language if available). It is also critical that the individual is asked to repeat what has been explained to them in their own words, and that they are&nbsp;encouraged to ask questions.</p>
<p>It is additionally important that the healthcare provider has a strong understanding of what the patient wishes to communicate. If the healthcare provider does not have a full and clear understanding of the patient&rsquo;s medical situation, the provider&#39;s&nbsp;diagnosis, treatment and management of the patient&rsquo;s case is redundant and likely to be incorrect. Clear and competent interpretation is essential to ensure the best outcome for a patient.</p>
<p><strong>Case Scenario</strong></p>
<p>Some of the pitfalls highlighted above were explored in a report commissioned by the University of California, Berkley, School of Public Health, entitled, &lsquo;The high costs of language barriers in medical malpractice&rsquo;.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[6]</a></span>&nbsp;In the de-identified case, referred to in the report as the &lsquo;Rivera lawsuit&rsquo;:</p>
<p><em>&lsquo;The parents of the patient in the Rivera lawsuit spoke only Spanish, but the orthopedist did not. Their 4-year-old son lost the use of his right arm when he broke his right elbow jumping on a moon bounce and suffered a blocked artery, resulting in arm fatigue and risk of gangrene&hellip;The patient chart did not document the use of any interpreter to secure informed consent for the first surgical procedure, a reduction of the fracture. However, the medical chart noted that a family member was used to interpret the discussion of the next surgical procedure for removal of pins, as well as for the surgery to remove some of the muscle tissue to relieve the pressure in the arm&hellip;The hospital and surgeon did not use interpreters for other key communications during the series of medical encounters, and they provided no Spanish translation of the informed consent forms. The Carrier paid the patient $650,000 in damages and paid legal fees in excess of $80,000.27&rsquo;.</em></p>
<p><strong>Legal Implications</strong></p>
<p>Lack of informed consent becomes a live issue when language barriers are present. The duty to ensure that a patient understands his/her care is paramount in a patient and healthcare provider relationship. Obtaining informed consent is a legal requirement. <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/58.html" target="_blank"><em>Rogers v Whitaker</em></a>&nbsp;highlights that when obtaining a patient&rsquo;s consent to undertake various therapeutic actions, medical practitioners have a duty to provide the patient with sufficient information about the material risks of a procedure or treatment to enable the patient to make an informed decision about whether to undergo the procedure or treatment. It further explains that the information provided must be relevant to the patient&rsquo;s individual circumstances. It is not enough to go through the mechanics of providing the patient information; the healthcare provider must ensure that the patient understands that information, otherwise consent cannot be assumed.</p>
<p>Failure of communication due to language barriers might lead to criticisms of substandard care, which could amount to negligence. Failure to show that a patient understood the medical information or consented to the medical surgery can lead to aggravated damages due to battery and be grounds for a finding of negligence, namely the failure to receive informed consent and/or the failure to warn, to name a few. It also contributes to mistrust and a breakdown in the relationship between the healthcare provider and patient.&nbsp;</p>
<p><strong>Conclusion</strong></p>
<p>The importance of overcoming language barriers must not be overlooked by healthcare providers. Clear communication is central to an effective relationship between a patient and medical professional, and is the prelude to the provision of competent medical care and treatment.&nbsp;<br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/529/f/Olamide pic cropped.png" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 130px; height: 118px;" />Olamide Kowalik</strong> is a Senior Lawyer at <a href="https://revolutionlaw.com.au/" target="_blank">Revolution Law</a>. She was admitted in 2003 and practises in the areas of medical negligence, motor vehicle accidents, WorkCover and public liability. She has been recognised by Doyles Guide as a Leading Medical Negligence Compensation Lawyer in Qld in 2015 and 2017. She is a member of the ALA, Women&rsquo;s Legal Association of Qld, Qld Medico-Legal Society and is on the board of Triumph Alliance, a non-for profit organisation. She is married and with 3 boys, including a set of twins, who keep her active!&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p style="text-align: center;">&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> B Salt, &lsquo;The curious nature of non-English speaking clusters in our cities&rsquo;, <em>The Australian </em>(online), 12 August 2017, <https: 4eaf844601ae657450e40c9c942b4473="" inquirer="" news="" news-story="" the-curious-nature-of-nonenglish-speaking-clusters-in-our-cities="" www.theaustralian.com.au=""><https: 4eaf844601ae657450e40c9c942b4473="" inquirer="" news="" news-story="" the-curious-nature-of-nonenglish-speaking-clusters-in-our-cities="" www.theaustralian.com.au=""><https: 4eaf844601ae657450e40c9c942b4473="" inquirer="" news="" news-story="" the-curious-nature-of-nonenglish-speaking-clusters-in-our-cities="" www.theaustralian.com.au="">.</https:></https:></https:></p>
<p><a href="#_ednref1" name="_edn1" title="">[2]</a> For a definition of &lsquo;language barrier&rsquo; see <https: dictionary="" language="" www.merriam-webster.com=""><https: dictionary="" language="" www.merriam-webster.com=""><https: dictionary="" language="" www.merriam-webster.com="">.</https:></https:></https:></p>
<p><a href="#_ednref1" name="_edn1" title="">[3]</a> National Council on Interpreting in Health Care, <em>FAQ &ndash; Translators and Interpreters,</em> <www.ncihc.org faq-for-translators-and-interpreters=""><www.ncihc.org faq-for-translators-and-interpreters=""><www.ncihc.org faq-for-translators-and-interpreters="">.</www.ncihc.org></www.ncihc.org></www.ncihc.org></p>
<p><a href="#_ednref1" name="_edn1" title="">[4]</a> National Health Law Program, <em>The high costs of language barriers in medical malpractice </em>(2010) 3, <http: docs="" high-costs-of-language-barriers-in-malpractice_nhelp.pdf="" resources="" www.pacificinterpreters.com=""><http: docs="" high-costs-of-language-barriers-in-malpractice_nhelp.pdf="" resources="" www.pacificinterpreters.com=""><http: docs="" high-costs-of-language-barriers-in-malpractice_nhelp.pdf="" resources="" www.pacificinterpreters.com="">.</http:></http:></http:></p>
<p><a href="#_ednref1" name="_edn1" title="">[5]</a> See, for example, G Flores et al, &lsquo;Errors in medical interpretation and their potential clinical consequences in pediatric encounters&rsquo;, <em>Pediatrics</em>, Vol. 111, No. 1, January 2003; J McQuillan and L Tse, &lsquo;Child language brokering in linguistic minority communities: Effects on cultural interaction, cognition, and literacy, language and education&rsquo;, Vol. 9, No. 3, 1995, 195-215. See also, &lsquo;Why relying on family members, friends and children as interpreters is dangerous and should be discouraged&rsquo;, available at <http: www.healthlaw.org=""><http: www.healthlaw.org=""><http: www.healthlaw.org="">.</http:></http:></http:></p>
<p><a href="#_ednref1" name="_edn1" title="">[6]</a> See above note 4.</p>
</div>
https://www.lawyersalliance.com.au/opinion/language-barriers-informed-consent-and-interpreters-in-medical-carehttps://www.lawyersalliance.com.au/opinion/language-barriers-informed-consent-and-interpreters-in-medical-careThu, 09 Aug 2018 00:00:00 +1000Modern slavery – what can be done?<p>In 1857, the political equilibrium of the United States of America was rocked by the decision of the United States Supreme Court in <em><a href="https://supreme.justia.com/cases/federal/us/60/393/case.html" target="_blank">Dred Scott v Sandford</a></em>. That decision called into question the constitutionality of the so-called Missouri Compromise (prohibiting slavery in the northern continental US with the exception of Missouri), which had been a key part of the strategy to contain the spread of slavery, rather than to eliminate it, a challenge which current political wisdom at the time judged to be unachievable.</p>
<p><strong>Landmark slavery case a trigger for American Civil War</strong></p>
<p>Dred Scott was a slave who had been sold to a master who took him to free territory in modern-day Minnesota, but then back to Missouri, where Scott tried to sue for his freedom. Unexpectedly, the Court held that Scott was property and not a citizen at all, and thus could not sue (or be sued) in the courts.</p>
<p>The case, through which it had been hoped that the slavery issue would be put to rest as a bone of contention, instead did the reverse, providing arguably the most significant single trigger for the Civil War.</p>
<p>After the war, the 14th Amendment to the US Constitution provided (among other things) that any person born or naturalised in the US was a citizen, reversing the <a href="http://supreme.justia.com/cases/federal/us/60/393/case.html" target="_blank"><em>Dred Scott v Sandford </em></a>decision and setting the scene for the next racial inequality battleground: the &lsquo;Jim Crow&rsquo; segregation laws, only completely eradicated in America in the 1950s.</p>
<p><strong>Slavery in production chains of goods sold in Australia</strong></p>
<p>Those events were of course confined to the continental United States. Today, globalisation has sharply diminished the significance of territorial boundaries, and people (and indeed nations) are now exploring what can be done about slavery worldwide.</p>
<p>Modern slavery is on our doorstep in the form of tee shirts and tank tops on sale in Australia for half the price of just the fabric involved, let alone the cost of manufacture. Can Australia do anything about this?</p>
<p>The answer is &lsquo;yes&rsquo;, if we are talking about political campaigning and the power of social media. But to find out what can be done legally is more complex.</p>
<p><strong>&lsquo;Territorial competence&rsquo; &ndash; the authority to make laws within a particular geographic territory</strong></p>
<p>A fundamental component of the Westminster model of governance (and indeed of the international legal framework) is that the power of the legislature to make laws is limited to the territory governed by the legislature. For example, the NSW Parliament cannot make valid laws about what happens in Queensland or Victoria. The Parliament of Australia cannot make valid laws binding the citizens of Fiji or Finland.</p>
<p>Some federal laws designed to target wrongful behaviour overseas superficially appear to have that kind of effect: for example, laws relating to child sex tourism, or fighters engaged in the current conflicts in the Middle East. However, these all have an Australian &lsquo;tag&rsquo;, focusing on conduct of citizens while they are in (or returning to) Australia, if the conduct of these people while in Australia can be linked to the wrongful activities overseas.</p>
<p>And nationality does not matter, as Schapelle Corby and hosts of others have found out to their cost. With very limited exceptions, if you are lawfully present in a country you are subject to its laws, whatever nationality you hold.</p>
<p>So, federal laws can be made about people or companies present in Australia. But how can those laws affect what businesses in Bangladesh or Burkina Faso do?&nbsp; To answer this, we need to look at another aspect of the powers of the federal parliament.</p>
<p><strong>The external affairs power &ndash; federal government&rsquo;s power to enter into international treaties</strong></p>
<p>It is generally well-known that, while a state legislature has plenary powers enabling the making of laws about almost everything within its territorial boundaries, the federal parliament can only legislate within the law-making powers conferred by the Constitution. An important source of power, in the present context, is the &lsquo;external affairs&rsquo; power (<a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=AFF6CA564BC3465AA325E73053DED4AA&amp;_z=z#chapter-01_part-05_51" target="_blank">s51(xxix</a><u><a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=AFF6CA564BC3465AA325E73053DED4AA&amp;_z=z#chapter-01_part-05_51">)</a></u> of the <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution.aspx" target="_blank">Constitution</a>).</p>
<p>This gives the federal government the power to enter into international treaties, conventions, and other binding agreements. If the Australian government signs up to a treaty or convention, this has the effect of giving the government legislative power it would not ordinarily have.</p>
<p>If this expansion of legislative power did not occur, the ability to sign up to a treaty would be meaningless. The power to stop the building of the Franklin Dam stemmed from such a treaty, as does the power to make federal anti-discrimination laws.</p>
<p><strong>Commonwealth law takes precedence over state law in the event of inconsistency</strong></p>
<p>However, this is a two-step process as far as the states are concerned. Merely signing a treaty does not bind a state. The Commonwealth must then enact a law to give effect to the treaty obligations, relying, if necessary, on <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=6ED2CAE61E7742A1B2C42F95D4C05252&amp;_z=z#chapter-05_109" target="_blank">s109</a><a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=6ED2CAE61E7742A1B2C42F95D4C05252&amp;_z=z#chapter-05_109" target="_blank"> </a>of the Constitution, which provides that if a Commonwealth law and a law of a state are inconsistent with each other, the Commonwealth law prevails.</p>
<p><strong>Modern slavery and federal government&rsquo;s ability to bind Australian companies</strong></p>
<p>When people talk about &lsquo;modern slavery&rsquo; they are of course not talking about the Dred Scott kind, but instead about people who, although theoretically free to walk away from enslavement, in practice cannot because they will starve, or face the threat of violence against themselves or their families.</p>
<p>However the framework is there, as has been explained above. The federal parliament cannot make rules binding overseas producers, but it can bind Australian companies which import the products.</p>
<p>A current proposal is to require companies with revenues above $100 million to report annually on what steps they have taken to ensure that their supply chains do not involve forced labour, human trafficking and the like.</p>
<p>Obviously, the capacity of the federal government to legislate depends on its entry into a relevant international agreement or agreements (including the Universal Declaration of Human Rights, the International Convention of the Rights of the Child and the International Covenant on Civil and Political Rights). The existence of the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/hrsa2011409/" target="_blank"><em>Human Rights (Parliamentary Scrutiny) Act 2011 </em>(Cth)</a>, establishing a Parliamentary Committee to check legislation for human rights compliance, reflects the commitment to various international human rights instruments to which Australia is a signatory. A key issue, however, is that the government can only regulate the conduct of companies within Australia, and frequently international supply chains are convoluted and complex.</p>
<p><strong>Need for substantial connection with treaty obligations for new laws to be passed</strong></p>
<p>Another key issue is that the federal government cannot make any law it pleases just because there is some connection with a treaty. There must be a substantial connection between the treaty obligations and the law that it proposes to make, especially if the law intrudes into an area traditionally regulated by the states. However, as companies are entirely the subject of federal regulation by virtue of <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=AFF6CA564BC3465AA325E73053DED4AA&amp;_z=z#chapter-01_part-05_51" target="_blank">s51(xx)</a> of the Constitution, this is of less concern here.</p>
<p>So, as is often the case, there are competing considerations. The &lsquo;softly, softly&rsquo; approach being advocated for in Australia may be taking account of the fact that if the federal government is seen to overreach it risks a legal challenge which, if successful, would set the cause back. That&rsquo;s what happened with the Missouri Compromise, albeit in a rather different way. However the Modern Slavery Bill 2018, currently before the federal parliament, while principally a measure just to compel public reporting by large businesses, will require them to outline the actions they are taking to address modern slavery in their supply chains.</p>
<p>Watch this space, as they say.</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/commercial-and-corporate/modern-slavery-what-can-be-done/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=slavery" target="_blank">here</a></em>.</p>
<p><a href="https://www.stacklaw.com.au/people/geoff-baldwin/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank"><img alt="" src="/sb_cache/blog/id/511/f/Geoff Baldwin 4.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 150px; height: 141px;" />Geoff Baldwin</a> is a lawyer in the <a href="https://www.stacklaw.com.au/service/business/operations/employment-law/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">employment law</a> team at <a href="https://www.stacklaw.com.au/location/parramatta/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">Stacks Champion</a>. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/modern-slavery-what-can-be-donehttps://www.lawyersalliance.com.au/opinion/modern-slavery-what-can-be-doneThu, 02 Aug 2018 00:00:00 +1000The return of Silicosis<p>At a time when attention on safe work practices is at an all-time high, an unwelcome epidemic is re-emerging to haunt Australia&rsquo;s stonemasons &ndash; the return of Silicosis. This incurable lung disease is caused by exposure to silica dust, and involves irreversible scarring and stiffening of the lungs.</p>
<p>Considered the &lsquo;new asbestos crisis&rsquo;, a large number of Silicosis cases have arisen over the past decade as a result of the increased use of artificial stone, which contains high amounts of silica dust (crystalline silica).</p>
<p>Silicosis caused by exposure to dust from engineered stone is progressive and aggressive. Most people with this disease face double lung transplantation as the only treatment option. The cohort is also tragically young, with stonemasons in their 20s and 30s developing progressive and debilitating Silicosis. In many cases the disease is fatal.</p>
<p>Artificial or &lsquo;engineered&rsquo; stone is a popular building product that is used to fabricate kitchen and bathroom benchtops. This product first came onto the market approximately 15 years ago, as a cheaper alternative to granite and marble. Today there are more suppliers of artificial stone in Australia than ever before, and stonemasons are in demand. Artificial stone such as caesarstone, quantum quartz and essastone is the material of choice across many Australian homes. The stone contains up to 90% silica content, hence why exposure is so high. &nbsp;</p>
<p>Silicosis was more common during the 1940s to 1960s, however as awareness of the disease increased and emphasis on safe work practices grew the number of Silicosis cases reduced, to the point that the illness had all but disappeared by the early 1990s. Unfortunately, over the past few years there has been a rise in Silicosis cases; in excess of 60 new Silicosis compensation claims were lodged between 2006 and 2016, the majority lodged by tradesmen who have worked in stonemasonry.</p>
<p>At a time when dangerous work practices should be on the decline, it is alarming to see such a spike in Silicosis cases. Employers in this industry should know the dangers of engineered stone, and they have an obligation to implement practices and procedures to ensure that employees are not at risk of developing life-threatening conditions like Silicosis.</p>
<p>Australian manufacturers will continue to use silica-based products like artificial stone so long as the product is cheap and profitable. However, employers need not forget that they are under a legal duty to eliminate or reduce risks to the health and safety of all employees so far as is &lsquo;reasonably practicable&rsquo;. Employers can use a number of techniques to minimise the risk of their workers contracting Silicosis: implementing safe cutting techniques such as &lsquo;wet cutting&rsquo;, supplying adequate personal protective equipment, and ensuring the exhaust systems in workshops are adequate. Rather than focusing on their profits and minimising their cost base, manufacturers of artificial stone must prioritise the health and safety of their employees.&nbsp;</p>
<p>In today&rsquo;s day and age workplace safety is of paramount importance, and the health of Australian workers should not be put at risk by the increasing demand for artificial stone. Employers must turn their minds to the issues that stem from working with artificial stone so that more lives are not lost from Silicosis.</p>
<p>&nbsp;</p>
<p><img alt="" src="/sb_cache/blog/id/527/f/Luke headshot.png" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 111px;" /><strong>Luke Perilli</strong> was admitted to practice in March 2016 and has since practised in personal injuries litigation. He previously worked at Shine Lawyers between February 2016 and 2018, practising in Workers&rsquo; Compensation, Public Liability and Motor Vehicle Accident claims. Since February 2018 he has been employed by Maurice Blackburn and works in the asbestos diseases/dust team, located in the Melbourne office. He assists individuals suffering asbestos and dust-related illnesses in compensation claims. His practice includes common law claims and WorkCover claims.&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/the-return-of-silicosishttps://www.lawyersalliance.com.au/opinion/the-return-of-silicosisThu, 26 Jul 2018 00:00:00 +1000How are compensation claims calculated in Queensland?<p>The first question most people ask regarding compensation is how much money they can expect to receive. A number of factors determine the total sum of a claim and, for this reason, there is no clear-cut answer.</p>
<p>The factors to consider include:</p>
<ul><li>the circumstances of the accident;</li>
<li>the nature and extent of the injuries sustained;</li>
<li>the nature and extent of any pre-existing injuries;</li>
<li>the age and life expectancy of the person;</li>
<li>whether the injuries have affected the person&rsquo;s ability to earn an income in the past;</li>
<li>whether the injuries are likely to affect the person&rsquo;s ability to earn an income in the future;</li>
<li>past and future care required, both paid and gratuitous;<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span>&nbsp;</li>
<li>medical or other expenses incurred; and</li>
<li>likely future expenses.</li>
</ul>
<p><strong>Large payouts can lead to unrealistic expectations</strong></p>
<p>People will often hear about a significant award of compensation and compare their own circumstances with those of the publicised case, incorrectly assuming that their claim will be worth a similar amount.</p>
<p>Adding to the complexity of estimating the total of a potential claim is the fact that different provisions apply depending on the circumstances of the accident, which affects the amount of damages claimable.</p>
<p><strong>Pain and suffering alone may not lead to high compensation payouts</strong></p>
<p>Pain and suffering compensation, also referred to as &lsquo;general damages&rsquo; or &lsquo;non-economic loss&rsquo;, can be awarded in compensation for the detrimental effect an injury has had on a person and their life.</p>
<p>This head of damages is particularly important in a compensation claim for people such as retirees and the unemployed, who may not be able to claim wage losses. For individuals in this situation, general damages often represent the largest component of their compensation claim.</p>
<p>However, general damages alone do not usually result in a high award of compensation. More often than not, there also needs to be a claim for future economic loss, future care and assistance, or both.</p>
<p>The way in which an injury has impacted a person&rsquo;s ability to work, the level of their pre-injury earnings, their employment history and their employment plans for the future &ndash; but for the accident &ndash; are all relevant considerations when assessing an entitlement for future economic loss.</p>
<p>The nature and level of care and assistance that the person will need in the future must also be considered.</p>
<p>In assessing a claim, lawyers will look to previous decisions to provide some guidance as to how similar cases have been decided.</p>
<p><strong>Components to be considered when calculating the total of a claim</strong></p>
<p>Calculating the total (&lsquo;quantum&rsquo;) of a claim involves assessing the evidence for each of the claimable components (&lsquo;heads of damage&rsquo;) which are as follows:</p>
<ul><li><em>General damages (pain and suffering)</em> &ndash; this considers the nature and extent of the injury, taking into account any pre-existing injuries or conditions. In assessing an entitlement to this component, a court is required to assess an &lsquo;injury scale value&rsquo; (ISV) by reference to the applicable legislation, being either the <a href="http://www5.austlii.edu.au/au/legis/qld/consol_reg/clr2014252/" target="_blank"><em>Civil Liability Regulation 2014</em></a><span style="font-size:10px;">&nbsp;</span>(CLR) or, in the case of a common law work injury damages claim, the <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/wcarr2014491/" target="_blank"><em>Workers&rsquo; Compensation and Rehabilitation Regulation 2014</em></a>.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[2]</a></span> The ISV range will vary, depending on the body part that has been injured (in the case of a physical injury), the nature of the injury and whether multiple injuries have been sustained. The court may have regard to other matters to the extent that they are relevant in a particular case, such as:
<ul><li>The injured person&rsquo;s age, degree of hindsight, life expectancy, pain, suffering and loss of amenities of life;</li>
<li>The effects of any pre-existing conditions;</li>
<li>Difficulties in life likely to have emerged for the injured person whether or not the injury had happened;</li>
<li>Where there are multiple injuries, the range for injuries other than the dominant injury, and the application of provisions of schedule 4 of the CLR to those other injuries.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[3]</a></span></li>
</ul>
</li>
</ul>
<p>Pain and suffering includes not only physical injuries, but also psychiatric injuries such as adjustment disorders, post-traumatic stress disorders (PTSD), anxiety and depression.</p>
<ul><li><em>Past economic loss</em> &ndash; this is a mathematical calculation of a person&rsquo;s past loss of earnings based on their pre-injury income, taking into account any anticipated change in earnings, such as a promotion or increase in hours.</li>
<li><em>Future economic loss</em> &ndash; this is usually the component which attracts the highest amount of compensation and is consequently the component that is the most contentious. In assessing an entitlement to future economic loss, the court considers the range of factors noted above.</li>
<li><em>Past and future loss of superannuation entitlements</em> &ndash; this is presently 9.5% of the amount awarded for past loss of earnings and 11.3% of the amount awarded for future loss of earnings.</li>
<li><em>Past and future care and assistance</em> &ndash; this is a component which can also attract a significant level of compensation, depending on the person&rsquo;s age and their likely ongoing needs for the future.</li>
<li><em>Past and future treatment</em> &ndash; this is a mathematical calculation of the expenses incurred in the past as a result of the accident and the anticipated future expenses, such as for surgery and post-operative rehabilitation.</li>
</ul>
<p><strong>Seeking the assistance of a lawyer</strong></p>
<p>Unfortunately, the mere fact that a person has experienced pain and suffering as a result of an accident does not necessarily mean they will be entitled to compensation, as any entitlement will depend very much on the circumstances surrounding the accident in which the injury was sustained.</p>
<p>For this reason, it is highly advisable for potential claimants to seek legal assistance early. A compensation lawyer will help to determine the likely prospects of succeeding in a compensation claim for injuries sustained, and what a person can expect to receive by way of compensation.</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/medical-negligence/how-are-compensation-claims-calculated-in-queensland/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=CompQLD" target="_blank">here</a>.</em></p>
<p><a href="https://www.stacklaw.com.au/people/phil-griffin/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=CompQLD" target="_blank"><img alt="" src="/sb_cache/blog/id/525/f/Phil Griffin cropped.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 109px;" />Phil Griffin</a>&nbsp;is a lawyer at <a href="https://www.stacklaw.com.au/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=CompQLD" target="_blank">Stacks Law Firm</a>, practising in Bundall, on Queensland&rsquo;s Gold Coast. While he has experience across various areas of litigation, Phil&rsquo;s predominant area of work has been in <a href="https://www.stacklaw.com.au/service/personal/challenges/personal-injury/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=CompQLD" target="_blank">compensation law</a> matters, which have been his main focus for over 25 years. Phil is driven by a deep-rooted sense of justice and fairness, and a passion for helping people. He has been fortunate to work with some of the best legal minds in the industry, which has further strengthened his knowledge and skills over the years.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> In Queensland, there is no entitlement to claim for past and future gratuitous care in respect of common law work injury claims. In accordance with s59 of the <em>Civil Liability Act </em>2003 (Qld) (CLA), a threshold of six hours of care per week for a minimum continuous period of six months following an injury must be met before a claim for gratuitous care can be pursued. An exception to this is where the CLA no longer applies because a common law claim has been made against&nbsp;a host employer in circumstances where a statutory and/or common law claim has also been made against an employer arising from the same cause of action, in which case the threshold is removed in regards to the claim against the host employer.&nbsp;</p>
<p><a href="#_ednref1" name="_edn1" title="">[2]</a> An exception to this is where the CLA does not apply because a common law claim has been made against a host employer in circumstances where a statutory and/or common law claim has also been made against an employer arising from the same cause of action, in which case general damages are assessed at common law in regards to the claim against the host employer.</p>
<p><a href="#_ednref1" name="_edn1" title="">[3]</a> Schedule 3, Part 1, s9 of the <em>Civil Liability Regulation 2014.</em></p>
</div>
https://www.lawyersalliance.com.au/opinion/how-are-compensation-claims-calculated-in-queenslandhttps://www.lawyersalliance.com.au/opinion/how-are-compensation-claims-calculated-in-queenslandThu, 19 Jul 2018 00:00:00 +1000Implementation of the Paramedicine Board of Australia<p>The first instructions required from a claimant in a medical negligence claim are where the alleged negligence occurred and the name of the medical practitioner. In Queensland, an initial notice is required to be served on the medical practitioner or the relevant hospital and health service under <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/pipa2002314/s9a.html" target="_blank">s9A</a> of the <em>Personal Injuries Proceedings Act 2002</em> (Qld).&nbsp;</p>
<p>When serving the initial notice, it depends on who is alleged to have caused the negligence as to how the process commences. If a general practitioner or private specialist is alleged to have been negligent, they are served personally at their place of business.</p>
<p>However, if the negligence is alleged to have occurred at a hospital, the relevant health service under which the hospital falls is required to be served. The medical practitioner is considered to be an employee of the relevant health service. The health service, as employer, becomes vicariously liable for the actions of its employees.&nbsp;</p>
<p>Paramedics are in a similar position to employees at a hospital, in that they are not served in person but their employer is served with the initial notice. While most would assume that this would be Queensland Ambulance Service (QAS), QAS is not considered to be a legal entity and consequently cannot be sued. The State of Queensland therefore becomes vicariously liable for the actions of paramedics and the State is issued with the initial notice at the outset of the claim.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span></p>
<p><strong>Ombudsman Complaints</strong></p>
<p>In many cases, the claimant&rsquo;s initial frustration is directed at the medical practitioner whose care they were under, and I often hear comments such as &lsquo;I want the doctor to be held accountable for the injury I have suffered so it does not happen to anyone else&rsquo;.&nbsp;</p>
<p>As part of my initial advice, I recommend that claimants should consider making a complaint to the Office of Health Ombudsman (OHO). The OHO is a Queensland statutory body established to investigate complaints made regarding health services. The OHO&rsquo;s aim is to assist in protecting the health and safety of the general public.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[2]</a></span>&nbsp;The OHO can conduct an independent investigation into the medical practitioner who provided the treatment rather than the hospital in general.&nbsp;</p>
<p><strong>Referral to AHPRA</strong></p>
<p>Upon completion of its investigation, the OHO is able to make a decision as to whether or not the complaint is one that should be referred to the Australian Health Practitioner Regulation Agency (AHPRA) to be put before the relevant Board.&nbsp;</p>
<p>Until recently there were 14 different Boards which handled such referred complaints, including dental, medical, medical radiation practice and occupational therapy, to name a few.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[3]</a></span> AHPRA assists with setting the national standards required for health practitioners and ensuring their compliance with those standards.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[4]</a></span></p>
<p><strong>Paramedicine Board of Australia</strong></p>
<p>In October 2017, the new Paramedicine Board of Australia was appointed, making this the 15th Board to be regulated by AHPRA.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[5]</a>&nbsp;</span>The establishment of the Paramedicine Board of Australia and requirement for all paramedics to be registered with AHPRA means that complaints about the treatment provided by paramedics will now be commenced with OHO and referred to the Board, if required. This registration process will allow AHPRA to regulate this sector of the health profession more effectively and ensure public safety.&nbsp;</p>
<p>Paramedics can now therefore become accountable for their decisions in providing treatment if AHPRA decides that treatment fell below the acceptable standard. From September 2018, anyone who has obtained the appropriate qualifications and wishes to be known as a &lsquo;paramedic&rsquo; nationally will be required to register with AHPRA.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[6]</a></span></p>
<p>Discussions regarding the establishment of this Board have been ongoing for a number of years and now that the Board has been appointed, and with registrations soon to commence, it brings paramedics into line with other health professionals.&nbsp;</p>
<p>Perhaps the registration process will reduce the number of stories in the media about unqualified or &lsquo;fake&rsquo; paramedics providing medical treatment to the general public, potentially putting lives at risk. In February 2017, an unqualified paramedic was alleged to have given 140 flu shots while based at a Central Queensland coal port.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[7]</a></span>&nbsp;In October of the same year, a 16-year-old boy, who had completed a paramedics course in rescue and medics, was arrested when he bought and created an emergency services truck and then proceeded to attend up to 40 emergencies in the month prior to his arrest.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[8]</a></span></p>
<p>It is my opinion that paramedics should continue to receive the same immunity that they currently have when providing first aid and/or emergency treatment. I am also of the opinion that if a paramedic has provided treatment to a standard which is below what should be acceptable, they should be required to explain their actions to the newly established Board, just as all other medical and health professionals are required to do, and face the consequences of their actions.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/523/f/Joanne Baker.png" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 120px;" />Joanne Baker</strong> started her legal career as a 17 year old Office Junior in a small law firm in the UK. She migrated to Australia in 2002 and continued working in law firms advancing from Legal Secretary to Law Clerk. Joanne graduated from University of Southern Queensland in early 2016 and was admitted as a Lawyer later that year.&nbsp;She then returned to University of Southern Queensland in 2017 and completed Honours achieving 6.5 GPA with a focus on medical law for her major dissertation.&nbsp;Joanne is currently a Lawyer in the Medical Negligence team at Slater &amp; Gordon Lawyers handling medical negligence and health professional claims throughout Queensland.</p>
<div id="edn1">&nbsp;</div>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p style="text-align: center;">&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> <em>Roane-Spray v State of Queensland</em> [2016] QDC 328, [45].</p>
<p><a href="#_ednref1" name="_edn1" title="">[2]</a> Office of the Health Ombudsman, <em>About us </em>(2018) &lt;<a href="http://[2] Office of the Health Ombudsman, About us (2018) &lt;http://www.oho.qld.gov.au/about-us/office-of-the-health-ombudsman/&gt;." target="_blank">http://www.oho.qld.gov.au/about-us/office-of-the-health-ombudsman/</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[3]</a> AHPRA, &lt;<a href="https://www.ahpra.gov.au/" target="_blank">https://www.ahpra.gov.au/</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[4]</a> AHPRA, <em>What we do</em> (page reviewed 3 November 2017) &lt;<a href="http://www.ahpra.gov.au/About-AHPRA/What-We-Do.aspx" target="_blank">http://www.ahpra.gov.au/About-AHPRA/What-We-Do.aspx</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[5]</a> AHPRA, &lsquo;National regulation of paramedicine moves a step closer&rsquo; (Media Release, 25 October 2017) &lt;<a href="http://www.ahpra.gov.au/News/2017-10-25-paramedicine.aspx" target="_blank">http://www.ahpra.gov.au/News/2017-10-25-paramedicine.aspx</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[6]</a> Ibid.</p>
<p><a href="#_ednref1" name="_edn1" title="">[7]</a> M Petrinec, &lsquo;&ldquo;Fake paramedic&rdquo; accused over CQ coal port flu shots&rsquo;, <em>Daily Mercury </em>(online), 11 February 2017, &lt;<a href="https://www.dailymercury.com.au/news/fake-paramedic-accused-over-cq-coal-port-flu-shots/3142396/" target="_blank">https://www.dailymercury.com.au/news/fake-paramedic-accused-over-cq-coal-port-flu-shots/3142396/</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[8]</a> M Scanlan, &lsquo;Fake truckie teen says he just wanted to help people in emergencies&rsquo;, <em>The West Australian </em>(online), 18 October 2017, &lt;<a href="https://thewest.com.au/news/australia/fake-truckie-teen-says-he-just-wanted-to-help-people-in-emergencies-ng-b88633260z" target="_blank">https://thewest.com.au/news/australia/fake-truckie-teen-says-he-just-wanted-to-help-people-in-emergencies-ng-b88633260z</a>&gt;.</p>
</div>
https://www.lawyersalliance.com.au/opinion/implementation-of-the-paramedicine-board-of-australiahttps://www.lawyersalliance.com.au/opinion/implementation-of-the-paramedicine-board-of-australiaThu, 12 Jul 2018 00:00:00 +1000Workers’ compensation system improves with access to free legal help<p>Much-needed changes to the NSW workers&rsquo; compensation scheme, announced in May 2018, will allow all injured workers who dispute the amount of money they receive while off work to seek help from a lawyer.</p>
<p>The plans to change the workers&rsquo; compensation system came after many injured workers complained of having to wrestle with a complicated and confusing system that left insurers holding all the cards on how much the payout for workplace injuries would be, leaving victims with little chance of mounting a successful challenge.</p>
<p><strong>Injured workers to have access to experienced compensation lawyers</strong></p>
<p>The planned changes announced by the NSW government will go some way towards improving an area of the workers&rsquo; compensation system which has been grossly unfair to victims. Under the changes, victims will have the opportunity to obtain assistance from experienced compensation lawyers who will argue their case and help them to navigate the system.</p>
<p>The changes will make it easier for injured workers to access free legal assistance to challenge insurers&rsquo; decisions on the amount of compensation they receive, and also to challenge decisions of the <a href="http://www.wcc.nsw.gov.au/Pages/Default.aspx" target="_blank">Workers&rsquo; Compensation Commission</a>.</p>
<p><strong>Workers&rsquo; compensation system swells to $4 billion surplus while injured workers have benefits cut</strong></p>
<p>The changes will not reverse the severe cuts to benefits for injured workers made by the government in 2012, which saw benefit payments decline by 25% in just five years. While injured workers suffered from the drastic cuts to financial support, the workers&rsquo; compensation system has swelled to a surplus of $4 billion.</p>
<p>A report produced by the <a href="https://www.futurework.org.au/" target="_blank">Australia Institute&rsquo;s Centre for Future Work</a> in April 2018 stated that the supposed crisis which justified the 2012 cuts was based on falsehoods, and that there was no moral or financial justification for injured workers continuing to suffer reduced benefits. (See <a href="https://d3n8a8pro7vhmx.cloudfront.net/theausinstitute/pages/2759/attachments/original/1524578852/Unions_NSW_WC_Report_FINAL.pdf?1524578852" target="_blank"><em>Restoring Security and Respect: Rebuilding NSW&rsquo;s Workers Compensation System</em></a>.)</p>
<p>In December 2017, thousands of injured workers who are unable to work lost their monthly benefits under the scheme, forcing many to rely on welfare and/or charity.</p>
<p><strong>Regional areas in NSW severely affected by 2012 changes to workers&rsquo; compensation</strong></p>
<p>It appears that people in regional areas have been particularly hard hit by the government&rsquo;s 2012 changes to the workers&rsquo; compensation system. The Central Western Daily newspaper recently reported that the number of workplace injury claims in the Orange area was 73% higher than the NSW average.</p>
<p>The newspaper reported that, according to the NSW government insurance and care provider icare, 400 people were injured in workplaces in Orange in 2017, equating to 26 claims per 1000 employees. (See <a href="https://www.centralwesterndaily.com.au/story/5369406/workplace-injuries-73-per-cent-higher-in-orange-than-state-average/regional/" target="_blank"><em>Workplace injuries 73 per cent higher in Orange than state average</em></a>.)</p>
<p>The convenor of the <a href="https://www.injuredworkerssupport.org.au/" target="_blank">Injured Workers Support Network</a> in Orange, Joe Maric, said it wasn&rsquo;t clear why workplace injuries were higher in Orange than elsewhere. He noted that the changes made to workers&rsquo; compensation in 2012 and to work health and safety had led to an increase in workplace injuries, with the onus for safety removed from the employer.</p>
<p><strong>Changes to workers&rsquo; compensation should enable faster resolution of disputes</strong></p>
<p>NSW Finance Minister Victor Dominello said the reforms to workers&rsquo; compensation will improve the &lsquo;experience&rsquo; of injured workers by improving support services, simplifying claim processes and removing duplication. Some of the changes will require legislation later in 2018.</p>
<p>&lsquo;A government review found that there are a number of ways in which we can improve the claims process for injured workers by enabling faster resolution of disputes&rsquo;, Mr Dominello said. (See media release, <a href="https://www.finance.nsw.gov.au/about-us/media-releases/new-dispute-resolution-process-workers-compensation" target="_blank"><em>New dispute resolution process for workers compensation</em></a>.)</p>
<p>Under the proposed changes, all enquiries and complaints from injured workers that are not resolved with their insurer in the first instance will be directed to the <a href="https://wiro.nsw.gov.au/" target="_blank">Workers&rsquo; Compensation Independent Review Office </a>(WIRO) for assistance.</p>
<p>The changes will see all enquiries and complaints from employers and other system participants being referred to the <a href="https://www.sira.nsw.gov.au/" target="_blank">State Insurance Regulatory Authority</a> (SIRA). In addition, the Workers&rsquo; Compensation Commission will undertake all dispute resolution once an internal review is completed by an insurer, removing these functions from SIRA and WIRO.</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/medical-negligence/workers-compensation-system-in-nsw-improves-with-access-to-free-legal-help/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=WorkersCompImp" target="_blank">here</a>.</em></p>
<p><em><img alt="" src="/sb_cache/blog/id/521/f/Justin Stack cropped.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 130px; height: 98px;" /></em><a href="https://www.stacklaw.com.au/people/justin-stack/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=WorkersCompImp" target="_blank"><strong>Justin Stack</strong></a> is a <a href="https://www.stacklaw.com.au/service/personal/challenges/personal-injury/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=WorkersCompImp" target="_blank">personal injury</a> lawyer at <a href="https://www.stacklaw.com.au/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=WorkersCompImp" target="_blank">Stacks Law Firm</a>, practising in Taree. Justin specialises in compensation law for individuals, conducting matters for clients in NSW and interstate. His expertise lies in handling major catastrophic claims arising from motor vehicle accidents and work accidents, and in conducting public liability and occupiers&rsquo; liability cases. He also deals with total and permanent disability claims on superannuation policies. Justin has often conducted matters for non-English speaking clients, sometimes with the aid of an interpreter. He often travels to clients who have difficulty travelling to his office in Taree.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/workers-compensation-system-improves-with-access-to-free-legal-helphttps://www.lawyersalliance.com.au/opinion/workers-compensation-system-improves-with-access-to-free-legal-helpThu, 05 Jul 2018 00:00:00 +1000Maternal rights must be recognised for the sake of children<p>Distressing news of the nearly 2,000 children separated from their mothers at the Mexican border as a result of President Trump&rsquo;s inhumane immigration policies<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span>&nbsp;highlights the failure of governments to recognise the critical bond between a mother and child and the lifelong trauma inflicted by separation.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[2]</a></span> Operation of Australian immigration law also results in the cruel separation of children from their mothers,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[3]</a></span>&nbsp;and a callous disregard for the maternal bond is also evident in many other areas of government policy.</p>
<p>The NSW government has recently announced a target to double the rate of adoption within four years.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[4]</a></span>&nbsp;People who adopt are also to be eligible for payment in future.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[</a>5] &nbsp;</span>NSW already boasts that it leads Australia in out-of-home care adoptions. Furthermore, the federal government is currently conducting an inquiry into local adoption &lsquo;as a viable option&rsquo; for children in out-of-home care with a view to establishing a national framework for this purpose.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[6]</a></span>&nbsp;Combined, these measures would seem to herald a return to the cruel and profoundly damaging child removalist policies of Australia&rsquo;s past.</p>
<p>The devastating impact of permanent removals on both mothers and children has been extensively documented<a href="#_edn1" name="_ednref1" style="font-size: 10px;" title="">[7]</a><font size="1">&nbsp;</font>in Australian government reports in relation to the Stolen Generation in 1997,<a href="#_edn1" name="_ednref1" style="font-size: 10px;" title="">[8]</a><font size="1">&nbsp;<span style="font-size:14px;">child migrants in 2004</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[9]</a></span><font size="1"><span style="font-size:14px;">&nbsp;and forced adoptions in 2012.</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[10]</a></span><font size="1"><font size="1"><span style="font-size:14px;">&nbsp;It is quite clear from the human suffering documented in these reports, each of them prompting a government apology, that permanently removing children is not an appropriate solution to disadvantage.&nbsp;</span></font></font></p>
<p><font size="1"><span style="font-size:14px;">Sadly, research by the Australian Bureau of Statistics (ABS) indicates that despite the apologies, Aboriginal women in particular continue to have their children removed at a rate that now exceeds even that of the notorious Stolen Generation period.</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[11]</a></span><font size="1"><span style="font-size:14px;">&nbsp;Although comprising only an estimated 5.5% of the Australian child population, in 2015-16 36.2% of all children placed in out-of-home care were Indigenous.</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[12]</a></span><font size="1"><span style="font-size:14px;">&nbsp;It is little wonder that many in the Aboriginal community in NSW regard Family and Community Services (FACS) as just the latest manifestation of the Aboriginal Protection Board. No amount of rebranding will hide the fact that &lsquo;care and protection&rsquo; is often an excuse for social engineering.</span></font></p>
<p><font size="1"><span style="font-size:14px;">This move in NSW towards permanent adoption from foster care placement will mean that there will be increased pressure to permanently remove children earlier from their mothers, thereby reducing the opportunity for women to retain or regain care of their child or maintain some level of ongoing relationship. This policy ignores the intense psychological bond arising from childbearing and demonstrates a lack of commitment to providing these mothers with the financial, legal and emotional support required to retain care of their own children.<br />
&nbsp;<br />
Adoption removes the obligation on government to conduct regular welfare checks and reduces the government&rsquo;s potential liability in respect to children who may otherwise be classed as wards of the state. The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[13]</a></span><font size="1"><span style="font-size:14px;">&nbsp;and other shocking reports</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[14]</a></span><font size="1"><span style="font-size:14px;">&nbsp;have drawn public attention to the epidemic of child abuse taking place in out-of-home care. However, adoption cannot guarantee the safety of children in their new homes. No Australian longitudinal research has been conducted into outcomes of adoption. There is therefore no data to suggest that this policy will cure the scourge of child abuse in out-of-home care, although it may hide it more effectively.</span></font></p>
<p><font size="1"><span style="font-size:14px;">Until the introduction of a reasonable Supporting Mother&rsquo;s Benefit by the Whitlam government in 1973, it was common for the babies of unwed mothers in Australia to be routinely removed from delivery tables, against the wishes of the mother, and placed with total strangers.</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[15]</a></span><font size="1"><span style="font-size:14px;">&nbsp;Since then, the number of babies available for adoption in Australia has dropped dramatically. However, too often children are still removed from vulnerable and disadvantaged mothers in circumstances where they could be given more assistance to retain care of their child, including greater support in escaping violent and abusive relationships.&nbsp;</span></font></p>
<p><font size="1"><span style="font-size:14px;">Another context in which Australian children are regularly removed from their mother&rsquo;s care is through the operation of family law. The presumption of shared parental responsibility introduced by amendments to the <em>Family Law Act </em>in 2006</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[16]</a></span><font size="1"><span style="font-size:14px;">&nbsp;has resulted in mothers increasingly being separated from babies and young children, including in circumstances where they have expressed fears for the child&rsquo;s safety. This presumption of &lsquo;shared parental responsibility&rsquo; disregards the critical emotional and physical bond that characterises the relationship between a mother and baby. Furthermore, the failure to adequately take into account the extent to which domestic violence and child sexual abuse are gendered crimes, in which the perpetrators are overwhelmingly male, has resulted in women and children in these circumstances being exposed to significant harm because of these provisions.</span></font></p>
<p><font size="1"><span style="font-size:14px;">While the work of mothering continues to be an unrecognised form of unpaid labour, systemic economic and social discrimination will continue, leaving women vulnerable to violence, exploitation and having their children removed and put at risk.</span></font><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[17]</a></span><font size="1"><span style="font-size:14px;">&nbsp;To end the epidemic in child abuse, more must be done to recognise maternal rights, both in domestic legislation and in international human rights law. Strong mothers are needed to raise safe and happy children and we must provide them with the financial, legal and moral support they need.&nbsp;<br />
&nbsp;</span></font></p>
<p><font size="1"><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/501/f/Anna Kerr pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 141px;" /></strong></span></font></p>
<p><font size="1"><span style="font-size:14px;"><strong>Anna Kerr</strong> is the Founder and Principal of the <a href="https://feministlegal.org/" target="_blank">Feminist Legal Clinic</a>, Sydney, which works to advance the cause of feminism and champion the human rights of women and girls by providing legal support to feminist organisations, groups and services and the women who access them.&nbsp;</span></font></p>
<p><font size="1"><span style="font-size:14px;">&nbsp;</span></font></p>
<p><font size="1"><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/519/f/Darelle Duncan.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 104px;" /></strong></span></font></p>
<p><font size="1"><span style="font-size:14px;"><strong>Darelle Duncan</strong> MEd FACEL is a Co-convenor of the <a href="http://feministlegal.org/" target="_blank">Feminist Legal Clinic</a>, member of Origins and long-term adoption law reform campaigner. See <a href="http://www.originsnsw.com/" target="_blank">http://www.originsnsw.com/</a>.</span></font></p>
<p><font size="1"><span style="font-size:14px;">&nbsp;</span></font></p>
<p><span style="font-size:10px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><font size="1"><span style="font-size:14px;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></span></font></p>
<p style="text-align: center;"><font size="1"><span style="font-size:14px;">&nbsp;</span></font></p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[1]</a> &lsquo;Mami, Papa&rsquo;: Distressing audio released of children separated at Mexico border&rsquo;, <em>The New Daily, </em>19 June 2018, &lt;<a href="https://thenewdaily.com.au/news/world/2018/06/19/donald-trump-separated-children-mexico-border/">https://thenewdaily.com.au/news/world/2018/06/19/donald-trump-separated-children-mexico-border/</a>&gt;.</span></font></p>
<p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[2]</a> For a discussion of the life-long impact on adoptees, see N Verrier, <em>The Primal Wound: Understanding the Adopted Child</em>, Gateway Press, 1993.</span></font></p>
<p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[3]</a> D Hansen and M Le Sueur, &lsquo;Separating mothers and children&rsquo;, <em>Alternative Law Journal, </em>Vol. 21, October 1996, 203&ndash;206, &lt;<a href="http://www.austlii.edu.au/au/journals/AltLawJl/1996/82.pdf">http://www.austlii.edu.au/au/journals/AltLawJl/1996/82.pdf</a>&gt;.</span></font></p>
<p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[4]</a> A Smith, &lsquo;Funding boost for out of home care adoption in NSW&rsquo;, <em>The Sydney Morning Herald</em> (online), 5 June 2018, &lt;<a href="https://www.smh.com.au/politics/nsw/funding-boost-for-out-of-home-care-adoption-in-nsw-20180604-p4zjf3.html">https://www.smh.com.au/politics/nsw/funding-boost-for-out-of-home-care-adoption-in-nsw-20180604-p4zjf3.html</a>&gt;.</span></font></p>
<p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[5]</a> K Munro, &lsquo;Adoptive Parents to be Paid Like Foster Carers in NSW&rsquo;, <em>The Sydney Morning Herald</em> (online), 29 March 2017, &lt;<a href="https://www.smh.com.au/national/nsw/adoptive-parents-to-be-paid-like-foster-carers-in-nsw-20170329-gv90mt.html">https://www.smh.com.au/national/nsw/adoptive-parents-to-be-paid-like-foster-carers-in-nsw-20170329-gv90mt.html</a>&gt;.</span></font></p>
<p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[6]</a> Parliament of Australia, &lsquo;Inquiry into local adoption&rsquo; (27 March 2018) &lt;<a href="https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Localadoption">https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Localadoption</a>&gt;.</span></font></p>
<p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[7]</a> D Higgins, &#39;Impact of past adoption practices&#39;, <em>Australian Institute of Family Studies </em>(2010) &lt;<a href="https://www.dss.gov.au/sites/default/files/documents/pastadoptionreport.pdf">https://www.dss.gov.au/sites/default/files/documents/pastadoptionreport.pdf</a>&gt;.</span></font></p>
<p><font size="1"><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[8]</a> Australian Human Rights Commission, <em>Bringing Them Home</em> (27 May 1997) &lt;<a href="https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf">https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf</a>&gt;.</span></font></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[9]</a> Senate Community Affairs References Committee, Parliament of Australia, <em>Forgotten Australians </em>(2004).</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[10]</a> Senate Community Affairs Reference Committee Report, Parliament of Australia, <em>Commonwealth Contribution to Former Forced Adoption Policies and Practices </em>(2012).</span></p>
<p><a href="#_ednref1" name="_edn1" title="">[11]</a> K Murphy, &lsquo;Indigenous child removal rate risks &ldquo;second stolen generation&rdquo;, Kevin Rudd warns&rsquo;, <em>The Guardian </em>(online), 13 February 2017, &lt;<a href="https://www.theguardian.com/australia-%20news/2017/feb/13/indigenous-child-removal-rate-risks-second-stolen-generation-kevin-rudd-warns">https://www.theguardian.com/australia- news/2017/feb/13/indigenous-child-removal-rate-risks-second-stolen-generation-kevin-rudd-warns</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[12]</a> Australian Institute of Family Studies, Children in Care, CFCA Resource Sheet &ndash; Oct 2017, &lt;<a href="https://aifs.gov.au/cfca/publications/children-care">https://aifs.gov.au/cfca/publications/children-care</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[13]</a> Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, <em>Case Study 24: Out-of-home care</em> (2015) &lt;<a href="https://www.childabuseroyalcommission.gov.au/case-studies/case-study-24-out-home-care">https://www.childabuseroyalcommission.gov.au/case-studies/case-study-24-out-home-care</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[14]</a> Office of the Children&rsquo;s Commissioner, Northern Territory Government, <em>Annual Report 2016-2017 </em>(2017) &lt;<a href="https://occ.nt.gov.au/__data/assets/pdf_file/0003/459921/OCC-Annual-Report-2016-17-WEB.pdf">https://occ.nt.gov.au/__data/assets/pdf_file/0003/459921/OCC-Annual-Report-2016-17-WEB.pdf</a>&gt;; A Horn, &lsquo;Tiahleigh Palmer&#39;s foster father Rick Thorburn gets life sentence for &ldquo;callous&rdquo; murder&rsquo;, <em>ABC News </em>(online), 25 May 2018, &lt;<a href="http://www.abc.net.au/news/2018-05-25/court-tiahleigh-palmer-murder-rick-thorburn-life-sentence-jail/9791556">http://www.abc.net.au/news/2018-05-25/court-tiahleigh-palmer-murder-rick-thorburn-life-sentence-jail/9791556</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[15]</a> D Higgins, &lsquo;Unfit Mothers... Unjust Practices?&rsquo;, <em>Family Matters,</em> No. 87, 2011, 56.</p>
<p><a href="#_ednref1" name="_edn1" title="">[16]</a> <em>Family Law Amendment (Shared Parental Responsibility) Act</em> 2006 (Cth), see &lt;<a href="https://www.legislation.gov.au/Details/C2008C00441">https://www.legislation.gov.au/Details/C2008C00441</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[17]</a> A Manne, &lsquo;Making Women&rsquo;s Unpaid Work Count - Feminist economics pioneer Marilyn Waring on care and the unfinished feminist revolution&rsquo;, <em>The Monthly</em>, May 2018, &lt;<a href="https://www.themonthly.com.au/issue/2018/may/1525096800/anne-manne/making-women-s-unpaid-work-count">https://www.themonthly.com.au/issue/2018/may/1525096800/anne-manne/making-women-s-unpaid-work-count</a>&gt;.<span style="font-size: x-small;">&nbsp;</span></p>
</div>
https://www.lawyersalliance.com.au/opinion/maternal-rights-must-be-recognised-for-the-sake-of-childrenhttps://www.lawyersalliance.com.au/opinion/maternal-rights-must-be-recognised-for-the-sake-of-childrenThu, 28 Jun 2018 00:00:00 +1000Risk of death is more than a ‘blemish’<p>One of the purposes of the Queensland workers&rsquo; compensation legislation is to support workers who have been injured at work to get back on their feet, regardless of the cause of their injury. The exception to this is in relation to psychiatric injuries, in which case support can be denied in the event that an injury is caused by &lsquo;reasonable management action&rsquo;. Employers and insurers have long taken advantage of this &lsquo;exclusion&rsquo;, leaving vulnerable workers without recourse. Industrial Commissioner Black has acted to limit this exception in the matter of&nbsp;<a href="https://archive.sclqld.org.au/qjudgment/2018/QIRC18-010.pdf" target="_blank"><em>McPherson v Workers&rsquo; Compensation Regulator</em>&nbsp;[2018] QIRC 010</a>.</p>
<p>Mr McPherson had been employed by BHP Billiton Mitsubishi Alliance at the Peak Downs Mine as a diesel fitter for 21 years. On 22 August 2015, as a result of events at work, he suffered an adjustment disorder and generalised anxiety, causing him to be unable to work for 14 months. Mr McPherson brought an application for compensation with BHP (the self-insurer). It was agreed that Mr McPherson was a worker, that he had suffered an injury and that his employment was the major significant contributing factor to that injury. The self-insurer, however, rejected the application on the basis that the injury was a result of &lsquo;reasonable management action&rsquo;.</p>
<p>On the evidence of Mr McPherson, which was supported by a number of witnesses and whose evidence was ultimately preferred by the Commissioner, the morning of 22 August 2015 proceeded as follows:</p>
<p>6:30 am &ndash; Pre-start briefing including job assignment. Mr McPherson and Mr Marsh are assigned to work on Dozer 401.</p>
<p>7:00 am &ndash; Workers collect tools and material required for assigned job. Mr Marsh is re-assigned to perform field work.</p>
<p>7:15 am &ndash; Commence work.</p>
<p>7:30 am &ndash; Mr McPherson identifies that Dozer 401 needs to be moved into the field and requests an operator move it.</p>
<p>7:40 am &ndash; The operator attends and conducts a pre-start routine on Dozer 401.</p>
<p>7:50 am &ndash; The operator discovers that Mr Marsh&rsquo;s isolation lock is fitted to Dozer 401.</p>
<p>7:55 am &ndash; Mr McPherson enters the office with the intention of calling to Mr Marsh on the radio to return to Dozer 401 to remove his isolation lock. Mr McPherson is intercepted by his supervisor, Mr Barron, who instructs Mr McPherson to remove Mr Marsh&rsquo;s isolation lock himself.</p>
<p>8:00 am &ndash; Mr McPherson returns to Dozer 401 and removes Mr Marsh&rsquo;s isolation lock as instructed.</p>
<p>8:15 am &ndash; Mr McPherson presents at the Medical Centre.</p>
<p>The issue before the Commission was whether the instruction by Mr Barron to Mr McPherson to remove Mr Marsh&rsquo;s isolation lock was a mere &lsquo;blemish&rsquo; or constituted &lsquo;unreasonable management action&rsquo;.</p>
<p>The isolation lock rule is considered to be a &lsquo;life saving&rsquo; rule in the hierarchy of safety rules at the mine. Each employee who is working on a piece of equipment must first fit their individual isolation lock to the equipment. This prevents the equipment from becoming operational. Only the individual employee who owns a lock may remove it. This ensures that equipment is not started while employees are working on or in the equipment.</p>
<p>There is a procedure for removing the isolation lock of an employee who is unable to do so themselves. This involves firstly contacting the owner of the isolation lock. When it has been confirmed that the employee is unable to return to the site and remove the lock themselves, a superintendent may authorise a supervisor or a competent person to remove the lock.</p>
<p>The evidence revealed that the isolation lock rule was not always fully complied with, although the part most often skipped was the obtaining of authority from a superintendent. The evidence also showed that an isolation lock was rarely removed by someone other than its owner.</p>
<p>In this case, however, Mr Barron had made no attempt to contact Mr Marsh, who Mr McPherson knew to be onsite, prior to instructing Mr McPherson to <em>&lsquo;just take it off. I&rsquo;ll do the paperwork later&rsquo;</em>. The respondent submitted that this should be categorised as a management blemish only. Mr Marsh was not in any danger and Mr McPherson was an extremely experienced operator. The event was<em> &lsquo;a single, isolated, and out of character deviation from a standard operating procedure&rsquo; </em>by Mr Barron.</p>
<p>Mr McPherson, however, submitted that the actions of Mr Barron had left him in an impossible position. He either had to disobey the order of his supervisor and likely face problems with him <em>&lsquo;down the track&rsquo;</em>, or intentionally breach a life-saving rule, putting the safety of Mr Marsh at risk as well as his own employment. The order by Mr Barron was also in breach of the&nbsp;<a href="http://classic.austlii.edu.au/au/legis/qld/consol_act/cmsaha1999242/" target="_blank"><em>Coal Mining Safety and Health Act&nbsp;</em>1999 (Qld)</a>.</p>
<p>The Commissioner agreed with the position of Mr McPherson, stating <em>&lsquo;Mr Barron&rsquo;s election to ignore a life-saving rule, to render a subordinate complicit in the breach and to demonstrate behaviour inimical to the fostering of a critical safety culture, cannot be excused in the manner proposed by the respondent&rsquo;</em>. It was determined that his conduct could not be categorised as a reasonable management action and, as such, Mr McPherson&rsquo;s application for compensation must be accepted by the self-insurer.</p>
<p>In the past, decisions around what constitutes reasonable management action have often considered singular, one-off events to be excusable as &lsquo;blemishes&rsquo; only, attracting the exclusion under <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/wcara2003400/s32.html" target="_blank">s32(5)(a)</a> of the&nbsp;<em>Workers&rsquo; Compensation and Rehabilitation Act&nbsp;</em>2003 (Qld). This case demonstrates that employers and insurers cannot continue to hide behind this exception in all cases, and that the bar for what is &lsquo;reasonable&rsquo; may be rising.</p>
<p>&nbsp;</p>
<p><span style="font-size:14px;"><img alt="" src="/sb_cache/blog/id/446/f/Michelle Wright - Shine Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 128px; height: 120px;" />Maurice Blackburn Lawyer <strong>Michelle Wright </strong>has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women&rsquo;s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advices.&nbsp;</span></p>
<p><span style="font-size:14px;">This article was originally published on Michelle&#39;s blog,</span><em><span style="font-size:14px;"> <a href="https://picasenote.wordpress.com/2018/03/12/risk-of-death-is-more-than-a-blemish/">P.I. Case Note</a>.</span></em></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="http://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.</strong></a></p>
https://www.lawyersalliance.com.au/opinion/risk-of-death-is-more-than-a-blemishhttps://www.lawyersalliance.com.au/opinion/risk-of-death-is-more-than-a-blemishThu, 14 Jun 2018 00:00:00 +1000Emojis in litigation: Adding unpredictability and ambiguity to electronic communications<p>A recent US article (by Mike Cherney in the Wall Street Journal Online) drew attention to the increasing prevalence of emojis in litigation. Emojis (or &lsquo;emoticons&rsquo;) are of course the thumbnail drawings, usually of a stylised face but also of other objects, which can easily be inserted into emails or text messages.</p>
<p>Should we be surprised at the intrusion of the emoji into litigation in which, obviously, electronic communications are being scrutinised? Probably not.</p>
<p><strong>What is an emoji?</strong></p>
<p>The simplistic response, given above, is a little face (although there are plenty of other kinds, very notably the &lsquo;thumbs-up&rsquo; or &lsquo;thumbs-down&rsquo; symbols). However this doesn&rsquo;t really answer the question.</p>
<p>Emojis are really a specialised form of written language, and their general purpose is to add shades of meaning, or perhaps even very specific messages, to what we write.</p>
<p>Spoken language includes a vast range of options for conveying and enhancing meaning. We can yell, or speak softly. We can speak formally and abruptly, or appealingly, cajolingly, or even in a sexually suggestive manner. We can raise our eyebrows; frown; smile; shrug our shoulders; wave our hands about or even stick our tongues out. So people tend to assume written language, by contrast, is somehow neutral and bereft of nuances. But it&rsquo;s not.</p>
<p><strong>Emphasis in written language</strong></p>
<p>The most obvious means of conveying emphasis in written language is to <em>italicise </em>important things; perhaps to write them in <strong>bold type</strong>; or perhaps even to use UPPER CASE LETTERS.</p>
<p>Additionally, ordinary punctuation marks can add nuances of meaning. A question mark following a statement can convey that the writer is making a statement, but is sending a message that he or she may not be entirely sure whether it&rsquo;s true.</p>
<p>Even odder is the exclamation mark. If I receive a response to a communication much later than I had requested, &lsquo;your reply was very late!&rsquo; conveys a touch of annoyance. However if I receive a reply almost instantly, &lsquo;your reply was very late!&rsquo; is a tongue-in-cheek way of expressing appreciation of the promptness, with the exclamation mark added to show that what I have said was intended to be light-hearted, and to guard against misinterpretation of what I&rsquo;ve said as being a criticism. But the two responses are exactly the same.</p>
<p>So we need to accept that written language is also flexible enough to convey shades of meaning, and it is accordingly important to take care with what we write.</p>
<p><strong>Adding emojis for emphasis</strong></p>
<p>Almost everyone approaches electronic communications &ndash; emails, text messages, and social media posts &ndash; as though they were informal conversations rather than formal letters. This is where care needs to be exercised.</p>
<p>For some time it has been accepted, in cases about workplace bullying, that CHUNKS OF EMAIL TEXT IN UPPER CASE LETTERS was &lsquo;yelling by email&rsquo;, and could be construed as forming part of a pattern of bullying. Emojis can, obviously, have a similar effect by adding a very obvious emphasis to the message. The common face with a protruding tongue, typically used to show sarcasm or light-heartedness, can obviously also be seen as rude and insulting.&nbsp;</p>
<p>An added complexity with emojis, however, is that the images are so compressed that it can be difficult to discern exactly what is being depicted. In the US article referred to, there was debate over a &lsquo;crying smiling face&rsquo; as to whether it was meant to convey disappointment, or crying with laughter.</p>
<p>In another case, a woman jobseeker replied to a sexually suggestive message from a male employee of the business, with an emoji prominently featuring kissing lips. This sparked debate as to whether the woman was responding approvingly to the message, or was offended and simply trying to defuse the situation as politely as possible.</p>
<p>On top of this, a receiving mobile phone with an operating system different from that of the sending phone may not recognise the emoji, and thus render it as a question mark in a frame like a road sign, potentially putting a totally different spin on the message.</p>
<p><strong>Taking care with electronic communications</strong></p>
<p>Long before the emergence of the emoji, the uncontrollable nature of emails required a standard of care higher than that required with the posted letter. Extraordinary circumstances aside, a posted letter will only reach the person you sent it to. An email can end up anywhere, as can a text message, tweet or other social media post.</p>
<p>With a posted letter, you only need to ask yourself how the recipient might interpret it, especially if you say something intended as sarcasm or cheeky humour. With electronic communications, the question is whether some complete stranger would understand that humour was intended.</p>
<p>What&rsquo;s more, it&rsquo;s almost impossible to eradicate an electronic communication. Although President Trump quickly deleted the offending tweet, the nonsense word &lsquo;covfefe&rsquo; &ndash; apparently a misspelling on his part while tired &ndash; has now entered the language.</p>
<p>You should also ask yourself whether there is any prospect of what you have written ending up being scrutinised by a court or tribunal, or having some other kind of legal consequence. Obviously, the overwhelming bulk of electronic communications will never see the inside of a courtroom, but if they do the results can be serious.</p>
<p>And this is the dilemma with emojis. It has been pointed out that ordinary punctuation can be ambiguous. With emojis, there is not only the risk (as there is with punctuation) that a very clearly identifiable emoji can still be interpreted in more than one way; but also that the picture itself may be misunderstood, leading to a completely unintended interpretation.&nbsp;</p>
<p>In summary, emojis can be useful and even endearing. But they add another dimension of unpredictability to communications already requiring much more caution than &lsquo;snail mail&rsquo;.</p>
<p>&nbsp;</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/business-disputes/emojis-adding-new-dimension-of-unpredictability-and-ambiguity-to-electronic-communications/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=Emojis" target="_blank">here</a></em>.</p>
<p><a href="https://www.stacklaw.com.au/people/geoff-baldwin/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank"><img alt="" src="/sb_cache/blog/id/511/f/Geoff Baldwin 4.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 150px; height: 141px;" />Geoff Baldwin</a> is a lawyer in the <a href="https://www.stacklaw.com.au/service/business/operations/employment-law/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">employment law</a> team at <a href="https://www.stacklaw.com.au/location/parramatta/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">Stacks Champion</a>. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/emojis-in-litigation-adding-unpredictability-and-ambiguity-to-electronic-communicationshttps://www.lawyersalliance.com.au/opinion/emojis-in-litigation-adding-unpredictability-and-ambiguity-to-electronic-communicationsThu, 07 Jun 2018 00:00:00 +1000Filming an accident instead of helping – the law in NSW<p>We see it on social media and on TV news broadcasts all the time &ndash; someone films an accident or a person being abused on public transport and they continue filming, rather than dropping the phone camera to go and help them.</p>
<p>Many of us have screamed at the TV: &lsquo;Put the phone down and go and help them!&rsquo; So, what does the law say about this situation?</p>
<p>Are we obliged under the law to help someone who is caught up in an accident or who is being abused in public?</p>
<p><strong>No duty of care owed to strangers in NSW</strong></p>
<p>The short answer is that under NSW law, we do not have a duty to help a stranger involved in an emergency or an accident.</p>
<p>So, in theory it is legal to take no action and keep walking if you hear a cry for help, provided you are not related to the person in peril. It may be absolutely despicable, but it is within the law.</p>
<p>But if the person in trouble has some relationship to you, or is someone for whom you have a responsibility, or you caused the accident, then the law changes. You then have a duty of care.</p>
<p><strong>NSW laws that govern filming</strong></p>
<p>The law in NSW is clear on filming &ndash; you can film whatever you like in a public place &ndash; provided you do not enter private property, breach privacy rules, or take indecent photographs without consent.</p>
<p>The<em> <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/sda2007210/" target="_blank">Surveillance Devices Act</a></em><a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/sda2007210/" target="_blank"> 2007 (NSW)</a> sets out the law related to the installation, use and maintenance of surveillance devices in NSW. The <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/soa1988189/" target="_blank"><em>Summary Offences Act</em> 1988 (NSW) </a>prohibits filming that amounts to offensive conduct.</p>
<p>Filming a person engaged in a private act &ndash; as defined under <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s91k.html" target="_blank">s91K</a> of the <a href="http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/ca190082/" target="_blank"><em>Crimes Act </em>1900 (NSW)</a> &ndash; without the person&rsquo;s consent can be illegal and punishable by up to two years in jail.</p>
<p><strong>Filming police and emergency services workers</strong></p>
<p>Even though it is generally permitted to film in a public place, under anti-terrorism laws police do have the power to prevent photographs being taken or events being filmed in &lsquo;certain circumstances&rsquo;.</p>
<p>Hindering emergency service workers by trying to get a better shot with your camera could get you arrested, as could crossing police boundaries. Otherwise, it is within the law to film police or emergency services workers in a public place.</p>
<p><strong>Protection of good samaritans who inadvertently hurt someone</strong></p>
<p>There is a good samaritan law that protects individuals who put down their camera and go to the rescue, but hurt someone in the process of trying to help.</p>
<p>It is called &lsquo;Protection of Good Samaritans&rsquo;, found in <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s57.html" target="_blank">s57</a> of the <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/" target="_blank"><em>Civil Liability Act </em>2002 (NSW)</a>. Under this law, however, the rescuer cannot be intoxicated and must exercise reasonable care and skill.</p>
<p><strong>Conclusion</strong></p>
<p>Regardless of what the law says, it is far better for an individual&rsquo;s own conscience to go to someone&rsquo;s aid if they are in trouble rather than to stand back filming, hoping to get on TV or for the clip to go viral on social media. It&rsquo;s the moral &ndash; and human &ndash; thing to do.</p>
<p>&nbsp;</p>
<p><em>A version of this article first appeared on the Stacks Law Firm website, and can be found <a href="https://www.stacklaw.com.au/news/criminal-law/filming-an-accident-instead-of-helping-what-the-law-says-in-new-south-wales/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=FilmingNotHelping" target="_blank">here</a>.&nbsp;</em></p>
<p><a href="https://www.stacklaw.com.au/people/nathan-luke/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=FilmingNotHelping" target="_blank"><strong><img alt="" src="/sb_cache/blog/id/517/f/ballina_nathan_luke.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 133px;" />Nathan Luke</strong></a> is an <a href="https://www.stacklaw.com.au/service/business/operations/employment-law/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=FilmingNotHelping" target="_blank">employment </a>lawyer at <a href="https://www.stacklaw.com.au/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=FilmingNotHelping" target="_blank">Stacks Law Firm</a>, based in <a href="https://www.stacklaw.com.au/location/ballina/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=FilmingNotHelping" target="_blank">Ballina, NSW</a>. He provides expert services to his corporate and employer clients. These include employment contracts, policies, alternative dispute resolution, due diligence on business purchases and employee management. Nathan also helps his employee clients to navigate the complex industrial and workplace laws, assisting them in their careers with contracts and advice. Where necessary, he fights hard to protect their rights in unfair termination, discrimination, bullying and adverse action claims.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/filming-an-accident-instead-of-helping-the-law-in-nswhttps://www.lawyersalliance.com.au/opinion/filming-an-accident-instead-of-helping-the-law-in-nswThu, 31 May 2018 00:00:00 +1000Can confidential medical records be subpoenaed in sexual assault claims?<p style="text-align: center;"><strong>BEFORE HIS HONOUR JUDGE CARMODY<br />
BETWEEN<br />
BR, MP, ML, MN and FR Plaintiffs<br />
and&nbsp;<br />
SHIVA YOGA INC &amp; KR Defendants</strong></p>
<p>The five plaintiffs in these applications represented by Angela Sdrinis Legal brought proceedings in the County Court to recover damages for alleged sexual assault by the second named defendant while they were at an ashram conducted by the first named defendant.</p>
<p>On 30 January 2018, the second named defendant&#39;s solicitors issued a series of subpoenas to various plaintiffs&#39; medical practitioners and counsellors seeking production of documents to the Registrar of the Court. In total, 16 subpoenas were issued. Objections to those subpoenas were made by the plaintiffs and three of the treatment providers, being two from the Centre Against Sexual Assault&nbsp;(CASAs) and one psychiatrist (referred to herein as Dr R).</p>
<p>On 20 March 2018, Judicial Registrar Gurry set aside each of the subpoenas after hearing argument from the respective parties&#39; representatives. The issue of whether leave was required pursuant to <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32c.html" target="_blank">s32C</a> of the <em>Evidence (Miscellaneous) Provisions Act</em> 1958 (Vic) (EMPA) from a court prior to issuing the subpoena was referred to Judge Carmody, who handed down his ruling on 2 May 2018 in an unreported decision.</p>
<p>The plaintiffs had provided some medical records and reports on a without prejudice basis prior to the issuing of proceedings with a view to facilitating pre-issue settlement negotiations.&nbsp;On the basis of this conduct, the second defendant submitted that each of the plaintiffs had waived any confidentiality over their medical records.</p>
<p>The plaintiffs contended that Div 2A of the EMPA must be complied with in respect of confidential communications. The definition of confidential communications under the Act is:</p>
<p><em>&lsquo;&ldquo;Confidential communication&rdquo; means a communication, whether written or oral, made in confidence by a person against whom a sexual offence has been, or has alleged to have been committed, to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.&rsquo;</em></p>
<p>Judge Carmody found that the communications between any and all of the plaintiffs in these applications and their respective medical practitioners and counsellors were confidential communications under the EMPA. In addition, his Honour found that under <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32c.html" target="_blank">ss32C</a>&nbsp;and <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32d.html" target="_blank">32D</a>, &lsquo;legal proceeding&rsquo; included any civil, criminal or mixed proceeding.</p>
<p>Noting that the statutory provisions override any common law principles relevant to waiver of medical privilege in these cases, Judge&nbsp;Carmody&nbsp;also found that the plaintiffs&rsquo; consent to the granting of leave to the issuing of subpoenas in this context was relevant to <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32e.html" target="_blank">s32E(1)(a)</a>&nbsp;of the EMPA. On the balance of probabilities, his Honour was satisfied that the evidence produced, subject to the subpoenas, would have substantial probative value to a fact in issue in&nbsp;the claims for damages and that this finding satisfied <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32d.html" target="_blank">s32D(1)(a)</a>. Judge Carmody was also satisfied that there was no other evidence of a similar or greater probative value concerning the facts in issue, which is <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32d.html" target="_blank">s32D(1)(b)</a>:</p>
<p style="margin-left:14.15pt;">&lsquo;In the circumstances where each plaintiff is seeking civil redress by way of damages from the defendants for sexual assault, the public interest in having the evidence and the records subpoenaed outweighs the public interest of protecting the confidentiality of the protected confiders &ndash; that&rsquo;s relevant to <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32d.html" target="_blank">s32D(1)(c)</a>.&#39;</p>
<p>Judge Carmody also dealt with the second defendant&rsquo;s argument that confidentiality between doctor and patient was waived when a report by the doctor was served. Dr R and the plaintiff BR relied on the provisions of <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s28.html" target="_blank">s28(2)</a>&nbsp;of the EMPA. Judge Carmody found that the service of the medical report did not amount to waiver in respect of the clinical records.</p>
<p>Justice J Forrest considered the effect of <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s28.html" target="_blank">s28(2)</a>&nbsp;of the EMPA in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2017/691.html" target="_blank"><em>Dr Geoffrey Kemp v The Medical Board of Australia</em></a>, reported at 2017 VSC 691. At paragraph 65 he said:&nbsp;</p>
<p style="margin-left:14.15pt;">&lsquo;The purpose of <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s28.html" target="_blank"><font color="#1b447c">s28(2)</font></a>&nbsp;therefore is clear. In civil matters, the confidentiality of communication between doctor and patient are paramount; absent consent of the patient, the information remains privileged. This is consistent with the development in the twentieth and twenty-first centuries of concepts of privacy and confidentiality in the therapeutic relationships as identified in several of the cases I have referred to. In the legislation in this state, such concerns are reflected in the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/hra2001144/" target="_blank"><em>Health Records Act </em>2001&nbsp;<ins cite="mailto:Tamsin%20Janu" datetime="2018-05-29T09:41">(</ins>Vic<ins cite="mailto:Tamsin%20Janu" datetime="2018-05-29T09:41">)</ins></a>, the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/hsa1988161/" target="_blank"><em>Health Services Act</em> 1988&nbsp;<ins cite="mailto:Tamsin%20Janu" datetime="2018-05-29T09:41">(</ins>Vic<ins cite="mailto:Tamsin%20Janu" datetime="2018-05-29T09:41">)</ins></a>, and the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/cohrara2006433/" target="_blank"><em>Charter of Human Rights and Responsibilities Act</em> 2006 (Vic)</a>&nbsp;and, at a federal level, the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/pa1988108/" target="_blank"><em>Privacy Act</em> 1988 (Cth)</a>.&rsquo;</p>
<p>The statutory regime set out in <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32c.html" target="_blank">s32C</a>&nbsp;of the EMPA is the overriding matter for determining if leave to serve a subpoena is to be granted. Judge Carmody said that the second defendant had to satisfy the court on the balance of probabilities that:</p>
<ol><li>the clinical records will have substantial probative value to a fact in issue;</li>
<li>other evidence of similar or greater probative value is not available; and</li>
<li>the public interest in preserving confidentiality of confidential communications and the protected confider from harm is substantially outweighed by the public interest in admitting the production of the records.</li>
</ol>
<p>Judge Carmody refused the application for leave pursuant to <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32c.html" target="_blank">s32C</a>&nbsp;to serve a subpoena on Dr R in respect of clinical records relating to BR. Given evidence from Dr R that in her professional opinion the release of her patient&rsquo;s clinical records would cause her patient &lsquo;trauma, exacerbate her anxiety and sleep disturbance and would diminish her ability to function in everyday life&rsquo;, Judge Carmody found that the potential harm to BR if the clinical records were released outweighed any public interest in having or assisting the defendant to defend the claim for damages brought against him&hellip;&lsquo;The public interest is in encouraging people alleging sexual assault to obtain counselling and professional medical help is very high, and has legislative support as set out in this division of the EMPA.&rsquo;</p>
<p>Insofar as the CASA records were concerned, even though some of these records had been provided pre-issue, Judge Carmody nevertheless found that privilege had not been waived and refused leave for the second defendant to serve subpoenas on the CASA&rsquo;s involved.&nbsp;</p>
<p>In summary, it is clear that <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/epa1958361/s32c.html" target="_blank">s32C</a>&nbsp;of the EMPA applies in civil and criminal cases and that defendants are required to seek leave to subpoena records that contain confidential communications in sexual assault claims. Provision of part clinical records and/or reports by a plaintiff does not mean that privilege is waived in relation to clinical records not served. However, a judge will consider the probative value of the evidence being sought and will weigh up the public interest in preserving confidentiality and whether this is outweighed by the public interest in admitting the production of the records.&nbsp;</p>
<p>In this case the judge certainly took into account the fact that medical reports and some clinical records had been provided to the second defendant and referred to the fact that the second named defendant had evidence of similar or greater probative value concerning the matters in dispute, and that in these cases the public interest in protecting the plaintiffs from harm outweighed any perceived disadvantage to the second named defendant to properly defend each claim.&nbsp;</p>
<p><strong>Author&#39;s note:</strong> the defendant in this matter has lodged an appeal.<br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/515/f/Angela Sdrinis.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 160px; height: 120px;" />Angela Sdrinis</strong> is a personal injuries accredited specialist and the director of <a href="http://www.angelasdrinislegal.com.au/" target="_blank">Angela Sdrinis Legal</a>, a specialist institutional abuse practice. Angela has represented victims appearing before the Royal Commission into Child Abuse, is a member of the advisory board to the Knowmore Legal Service and has been called to give evidence before the Senate in the Forgotten Australians Inquiry and the Victorian Parliamentary Inquiry which resulted in the Betrayal of Trust Report.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/can-confidential-medical-records-be-subpoenaed-in-sexual-assault-claimshttps://www.lawyersalliance.com.au/opinion/can-confidential-medical-records-be-subpoenaed-in-sexual-assault-claimsThu, 24 May 2018 00:00:00 +1000Defamation actions: the high cost of social media posts, comments and ‘likes’<p>Rebel Wilson&rsquo;s massive $4.5 million damages award last year &ndash; the highest awarded by a court for defamation damages in Australian history &ndash; signals that the courts are increasingly prepared to make big&nbsp;organisations pay big time for defamation.</p>
<p>The Victorian Supreme Court decision for Wilson against Bauer Media, publisher of Woman&rsquo;s Day, Australian Women&rsquo;s Weekly, New Weekly and OK! suggests that the courts are willing to defend people&rsquo;s reputation, not only against large media organisations but also in response to ugly and abusive posts on social media. (See <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2017/521.html" target="_blank"><em>Wilson v Bauer Media Pty Ltd </em>[2017] VSC 521</a>.)</p>
<p><strong>Victims can take legal action under law of defamation</strong></p>
<p>Everyone needs to be careful what they post, like and comment on in social media, whether it be on Facebook, comments on business websites, or sledging individuals via Snapchat, Instagram or Twitter.</p>
<p>Abusive and/or threatening messages sent online can cause immense harm to those who are targeted. If they&nbsp;can also be considered libellous under the law of defamation, the victim can take legal action against the person who posted the online message.</p>
<p><strong>Seeking restitution for defamation now more common</strong></p>
<p>In recent times I have seen an increase in the number of people seeking restitution from those who have besmirched their good name or business reputation online. This can include libellous and untrue comments posted on a company&rsquo;s website or Facebook site that can be seen by others.</p>
<p>We have strong uniform defamation laws in Australia; you cannot publish whatever you like. That applies not only to mainstream media, but to social media as well.</p>
<p><strong>What is defamation?</strong></p>
<p>The legal test for defamation is relatively simple &ndash; if you publicly write something that could be regarded by a &lsquo;reasonable person&rsquo; as exposing someone to hatred, ridicule or contempt, you could be defaming them.</p>
<p>Generally, if something untrue is published, including online, which lowers a person&rsquo;s estimation in the eyes of other people, or causes them to be avoided or shunned, that utterance might be considered defamatory.</p>
<p><strong>Businesses taking action in response to untrue and damaging reviews</strong></p>
<p>Usually the court will not get involved if the sledging is between a couple who have been trading emotional insults for some time, but individuals can take action for defamation.</p>
<p>A small business of fewer than ten employees can take legal action if a person wrote untrue and damaging reviews about the business. The amount of damages can be influenced by how much the business suffered as a result.</p>
<p>There is a defence if the defendant can prove that the defamatory imputations are &lsquo;substantially true&rsquo;, that they are an expression of opinion, not a statement of fact, or that they represent a &lsquo;fair report&rsquo; of proceedings of public concern.</p>
<p><strong>Substantial sums can be awarded for defamation</strong></p>
<p>Reputations are important and can be protected under the law. In 2016 a Canberra woman won $180,000 in damages against a man who posted Facebook comments that the ACT Supreme Court ruled had defamed her. (See <a href="http://courts.act.gov.au/__data/assets/pdf_file/0011/1011800/Reid-.pdf" target="_blank"><em>Reid v Dukic</em> [2016] ACTSC 344</a>.)</p>
<p>In 2014, a high school teacher was awarded $105,000 for defamatory comments made about her by a former student.</p>
<p>A quest for restitution doesn&#39;t&nbsp;have to end up in court. The <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/da200599/index.html" target="_blank"><em>Defamation Act</em> 2005 (NSW)</a> provides mechanisms for publishers to make amends, including taking down the message, issuing an apology, or some out-of-court settlement.</p>
<p>Under the law, publication of defamatory material is actionable without proof of special damage. However, such proof does help the court to assess the amount of damages a plaintiff might receive.</p>
<p><strong>&lsquo;Liking&rsquo; a Facebook post could be deemed defamatory</strong></p>
<p>There are signs that a defamation action could go much further. In 2017, in Switzerland, a court ruled that clicking the &lsquo;like&rsquo; button on a Facebook comment indicated support for the original post which described someone as racist or fascist; the &lsquo;like&rsquo; click was deemed defamatory.</p>
<p><strong>Commencing legal proceedings</strong></p>
<p>Individuals who feel they have been defamed have one year from publication of the allegedly offensive comment to commence legal proceedings. It is important to keep a record of any defamatory comments, along with any negative effects these comments have had on the individual and/or a business, to increase the chances of a successful defamation claim.<br />
&nbsp;</p>
<p><em>A version of this article first appeared on the Stacks Law Group website, and can be found <a href="https://www.stacklaw.com.au/news/business-disputes/defamation-actions-high-cost-social-media-posts-comments-likes/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=DefamationActions" target="_blank">here</a>.</em></p>
<p><a href="https://www.stacklaw.com.au/people/anneka-frayne/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=DefamationActions" target="_blank"><img alt="" src="/sb_cache/blog/id/513/f/Anneka-Frayne edited.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 127px;" />Anneka Frayne</a> is a lawyer specialising in general litigation at <a href="https://www.stacklaw.com.au/?&amp;utm_source=ALAlliance&amp;utm_medium=Website&amp;utm_campaign=DefamationActions" target="_blank">Stacks Law Firm</a>. She recently attained a Master of Applied Law degree majoring in commercial litigation and was promoted to Senior Associate. Anneka works with clients who have a complaint or dispute and wish to have it resolved. She uses her negotiation and communication skills to ensure that clients are clear about possible outcomes, resulting in more amicable and cost-effective results for all parties.</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/defamation-actions-the-high-cost-of-social-media-posts-comments-and-likeshttps://www.lawyersalliance.com.au/opinion/defamation-actions-the-high-cost-of-social-media-posts-comments-and-likesThu, 17 May 2018 00:00:00 +1000Can lease agreements be discriminatory?<p>A Brisbane barber shop was recently in the press for denying services to a woman based on her gender, due to a non-compete clause in its lease.</p>
<p>The incident involved a woman, Vivien Houston, who was refused service at Jimmy Rod&rsquo;s Barber Shop at The Gap Village Shopping Centre in Brisbane. Jimmy Rod&rsquo;s Barbershop is a chain of 14 barber shops, located mainly in Queensland.</p>
<p><strong>Non-compete clause in lease specifies that shop will only serve men and children</strong></p>
<p>The barber shop had been a tenant at the centre for ten years. The shop&rsquo;s new lease contained provisions from Jimmy Rod&rsquo;s previous leases, including that the premises could only be used as a barber shop for men and children.</p>
<p>The staff told Ms Houston that they were unable to serve her due to a non-compete clause in their recently renewed lease agreement, which was designed to prevent them from competing with other hair salons in the centre. This is at odds with Jimmy Rod&rsquo;s other barber shops, which do cut women&rsquo;s hair.</p>
<p>The barber shop was subsequently sent an email by Ms Houston, advising them of her intention to lodge a complaint with the Anti-Discrimination Commission Queensland.</p>
<p><strong>Businesses can legally decline to provide services outside their expertise</strong></p>
<p>The incident raises the interesting question of whether lease agreements can be discriminatory. The scenario is complex, but when it comes to anti-discrimination, it is ultimately the circumstances which determine whether the discrimination was legal.</p>
<p>If the barber shop specifically advertised itself as a specialist men&rsquo;s hair care provider, it would not be in breach of discrimination law, which focuses on differential treatment in the same circumstances. This is because a provider offering some technical expertise would ordinarily be on safe legal grounds to decline providing services outside of that expertise.</p>
<p>In a similar vein, a Chinese restaurant can legally advertise for Chinese wait staff, or guards of a particular gender may be hired where frisk searches or strip searches may be required.</p>
<p>Unfortunately for the barber shop, it said it would have accepted Ms Houston but for the fact that its lease prohibited it from competing against women&rsquo;s hairdressers in the same shopping mall.</p>
<p><strong>Anti-discrimination laws vs contractual lease conditions</strong></p>
<p>The complexity arises in this case because the business is caught between two legal duties &ndash; complying with anti-discrimination provisions and complying with its contractual lease conditions. Generally, legislative rules trump lease conditions. This means that it would be defensible for the barber shop to defy the lease agreement and refuse to discriminate against women.</p>
<p>However, if the business chose to do this, it could suffer financial ruin as a result of a dispute with the shopping centre owner over the terms of the lease. In such a scenario, the outcome could hinge on the question of whether the non-compete clause was a fundamental condition of the lease.</p>
<p>Jimmy Rod&rsquo;s has now successfully negotiated a new agreement with the centre that will remove the problematic clause, and it has notified Ms Houston of this fact.</p>
<p><strong>Careful wording can circumvent a clash of legal duties</strong></p>
<p>On a practical level, instead of specifying that the shop would only give haircuts to men, the lease could have been reworded to state that the shop would only do &lsquo;men&rsquo;s haircuts&rsquo;. This would mean that a woman who wanted a man&rsquo;s haircut &ndash; like Ms Houston &ndash; should be able to be served by the shop without the lease provisions being breached.</p>
<p>Due to the complexities of commercial leases, any business that is considering entering into a commercial lease should seek legal advice.</p>
<p>&nbsp;</p>
<p><em>A version of this article first appeared on the Stacks Law Group website, and can be&nbsp;found <a href="https://www.stacklaw.com.au/news/business-disputes/non-compete-clause-in-shopping-centre-lease-leads-to-discrimination-complaint-against-barber-shop/" target="_blank">here</a>.</em></p>
<p><a href="https://www.stacklaw.com.au/people/geoff-baldwin/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank"><img alt="" src="/sb_cache/blog/id/511/f/Geoff Baldwin 4.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 150px; height: 141px;" />Geoff Baldwin</a> is a lawyer in the <a href="https://www.stacklaw.com.au/service/business/operations/employment-law/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">employment law</a> team at <a href="https://www.stacklaw.com.au/location/parramatta/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">Stacks Champion</a>. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/can-lease-agreements-be-discriminatoryhttps://www.lawyersalliance.com.au/opinion/can-lease-agreements-be-discriminatoryThu, 10 May 2018 00:00:00 +1000Why private sector whistleblowers need better protection<p>With the possible added stimulus of a couple of recent high-profile private sector cases, in September 2017 a Joint Committee of the Australian Senate published a comprehensive and detailed report on whistleblower protections, focused heavily on the private sector, and made recommendations for change.</p>
<p><strong>What is whistleblowing?</strong></p>
<p>Everyone knows what a whistleblower is &ndash; someone who publicly discloses improper, corrupt, or possibly even criminal conduct on the part of someone in an organisation. Pretty much by definition, the whistleblower is (or was) also part of the organisation, and is speaking out with insider knowledge and at considerable risk to their career.</p>
<p>But not everyone knows how we came to have whistleblower legislation, websites, support organisations and a range of reviews and inquiries, when 50 years ago a &lsquo;whistleblower&rsquo; was a football referee.</p>
<p><strong>Australian public servants historically gagged by secrecy provisions</strong></p>
<p>For most of the 20th century, public service legislation in Australia had secrecy provisions. The fact that someone speaking out was exposing serious misbehaviour was no defence. In the early 1970s, police officer Sergeant Phillip Arantz, who had publicly disclosed that NSW police crime clear-up rates were being routinely falsified, was branded as insane by the then Premier Robert Askin (who was also the Minister for Police) and subsequently dismissed.</p>
<p>While this was an unusually high-profile case, public servants were often disciplined, and occasionally dismissed, for speaking out about things they believed were wrong.</p>
<p><strong>Anti-corruption push gains momentum during 1970s</strong></p>
<p>In 1976 Neville Wran became Premier of NSW. He took office with the support of South Coast independent MP and anti-corruption campaigner John Hatton, and his government agreed to support Hatton&rsquo;s agenda.</p>
<p>Hatton had championed the case of Eddie Azzopardi, whose efforts to reveal police corruption had been rewarded by, among other things, the police firebombing his garage. Azzopardi was a member of the public and hence not a &lsquo;whistleblower&rsquo; as such, but this case gave impetus to Hatton&rsquo;s cause.</p>
<p><strong>Establishing of Independent Commission Against Corruption</strong></p>
<p>Although Hatton was a tireless campaigner, an anti-corruption commission (ICAC) was not established until the election of the Greiner government in 1988. The first whistleblower legislation was the <a href="https://www.legislation.nsw.gov.au/acts/1994-92.pdf" target="_blank"><em>Protected Disclosures Act</em> 1994 (NSW)</a>.</p>
<p>While public service secrecy provisions had by then been much watered down, it was still entirely possible that a public servant would suffer consequences for speaking out, whether in accordance with the rules or otherwise.</p>
<p><strong>Whistleblowers obliged to try internal channels before speaking publicly</strong></p>
<p>The <em>Protected Disclosures Act </em>may seem fairly modest in its approach: all it really did was to protect a public servant from reprisals for speaking publicly,<em> provided</em> all internal channels had first been tried and found wanting.</p>
<p>This indeed remains the model: a whistleblower disclosing something in the public arena will (other than in extraordinary circumstances) not be protected without having made at least some attempt to bring the problem to notice internally.</p>
<p><strong>Lack of comprehensive scheme of private sector whistleblower protections</strong></p>
<p>While public sector whistleblower laws are now in place Australia-wide, no comprehensive scheme covers the private sector. There are presently provisions of this kind in a small number of specific industries (for example, banking, insurance and superannuation), a limited range of provisions in the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/ca2001172/" target="_blank"><em>Corporations Act</em> 2001 (Cth)</a> and, in relation to trade unions, provisions of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fwoa2009362/" target="_blank"><em>Fair Work (Registered Organisations) Act</em> 2009 (Cth)</a>.</p>
<p>That there is no comprehensive private sector scheme is not surprising, because the original whistleblower laws were part of a broader push to combat the secretive nature of governments. The main thrust here was freedom of information laws, which were rooted in the principle that, in a democracy, the public is entitled to know what its governments are doing.</p>
<p>By contrast, it was accepted that private sector organisations had no comparable obligation and were entitled to keep secret anything they wanted in the course of fostering their commercial interests, as long as they did not break the law. Their mantra was &lsquo;commercial-in-confidence&rsquo;.</p>
<p><strong>Whistleblower protections in private sector now seen as vital to robust corporate governance</strong></p>
<p>Fifty years on, the public/private sector distinctions are less clear and, in particular, there is far less acceptance that private sector organisations should simply be immune from this kind of scrutiny. The recent report (<em>Whistleblower Protections</em>, Parliamentary Joint Committee on Corporations and Financial Services, September 2017) reflects this shift.</p>
<p>Indeed, major business and regulatory organisations making submissions to the Joint Committee were fairly unanimous in their view that a broad and effective scheme of whistleblower protection in the private sector was an essential element of ensuring robust corporate governance.</p>
<p><strong>Deficiencies of <em>Public Interest Disclosure Act</em></strong></p>
<p>There have in fact been numerous publications on whistleblowing, the most recent being a Senate Economics Reference Committee Issues paper in 2015, and the 2016<em> Moss Review </em>of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/pida2013295/" target="_blank"><em>Public Interest Disclosure Act </em>2013 (Cth)</a>.</p>
<p>Although public sector whistleblowing protections are of longer standing and are generally fairly comprehensive, the <em>Moss Review</em> found that this Act applying to the Commonwealth public sector had substantial deficiencies, including that it was largely ineffective in providing whistleblowers with effective protection against reprisals; holding those responsible for reprisals to account; and in exposing and dealing with misconduct.</p>
<p><strong>Whistleblower Protections report recommends laws to govern private sector</strong></p>
<p>In the <em>Whistleblower Protections</em> report, the Joint Committee took an important step in recommending that the private sector generally should be covered by whistleblower laws.</p>
<p>However, it recognised that because of the differences between the public and private sectors, there should (at least at this stage) be separate legislation governing each sector. Nonetheless, it recommended the establishment of a single authority to oversee the operation of all whistleblower protection.</p>
<p>Essentially, the report argues for consistency across the sectors, except where that was judged to be impractical because of current differences.</p>
<p>Other recommendations include:</p>
<ul><li>continuing use of the &lsquo;tiered&rsquo; approach under which, to secure protection, whistleblowers must first make <u>internal disclosure</u><strong> </strong>and, where that does not succeed, disclosure to regulatory authorities before &lsquo;going public&rsquo;;</li>
<li>allowing for <u>anonymous disclosure</u>, and protecting whistleblower confidentiality;</li>
<li>setting and promotion of<strong> </strong><u>standards for internal disclosure</u> in private sector organisations;</li>
<li>annual <u>reporting to parliament</u>; and</li>
<li>aligning protections for whistleblowers and <u>sanctions for retaliators</u> with the provisions of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fwoa2009362/" target="_blank"><em>Fair Work (Registered Organisations) Act</em> 2009 (Cth)</a>.</li>
</ul>
<p><strong>Growing size and influence of private sector demands more protection for whistleblowers</strong></p>
<p>Few would dispute the importance, in Australian society today, of mechanisms to strengthen accountability in the private sector. The growing size and influence of private sector organisations, and the ongoing push to privatise public sector organisations, means that individuals frequently have no more ability to avoid dealing with, or being unavoidably influenced by, private sector organisations than they do government agencies.</p>
<p>Differences will inevitably remain. While it is proposed to broaden the definition of disclosable conduct in the private sector to include breach of any Commonwealth, state or territory law, disclosable conduct in the public sector extends to some conduct which does not necessarily involve the breach of a law.</p>
<p>And there is always the prospect that an organisation will claim some disclosures to be mischievous: false allegations made for wrong or unworthy purposes, or as a &lsquo;pre-emptive strike&rsquo; in an attempt by the whistleblower to erect a defence (through the anti-reprisal provisions) against anticipated dismissal or other disciplinary action.</p>
<p>The <em>Whistleblower Protections </em>report generally takes a measured approach which recognises that due to continuing changes in organisations, the impact on the public of wrongdoing and the shifting of private/public sector boundaries, we need evolutionary change if there is to be an effective regime for protecting those who speak out to expose wrongdoing.</p>
<p><br />
<strong>**</strong>Note that this article was written before the commencement of the 2018 banking Royal Commission hearings. The author believes that one by-product of the Royal Commission will be added stimulus to the push for whistleblower laws.<strong>**</strong></p>
<p><em>A version of this article first appeared on the Stacks Law Group website, and can be&nbsp;found <a href="https://www.stacklaw.com.au/news/business-disputes/whistleblower-protections-need-boosting-publicprivate-sector-boundary-continues-shift/" target="_blank">here</a>.</em></p>
<p><a href="https://www.stacklaw.com.au/people/geoff-baldwin/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank"><img alt="" src="/sb_cache/blog/id/511/f/Geoff Baldwin 4.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 150px; height: 141px;" />Geoff Baldwin</a> is a lawyer in the <a href="https://www.stacklaw.com.au/service/business/operations/employment-law/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">employment law</a> team at <a href="https://www.stacklaw.com.au/location/parramatta/?&amp;utm_source=ALAlliance&amp;utm_medium=e-news&amp;utm_campaign=Whistleblowers&amp;BarberShop" target="_blank">Stacks Champion</a>. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/why-private-sector-whistleblowers-need-better-protectionhttps://www.lawyersalliance.com.au/opinion/why-private-sector-whistleblowers-need-better-protectionThu, 03 May 2018 00:00:00 +1000Online alternative dispute resolution<p><strong>INTRODUCTION&nbsp;</strong></p>
<p>A key driver of online dispute resolution (ODR) is the need for affordable access to justice. In many lower-value disputes, what is at stake is worth less than the cost of commencing formal legal proceedings, or even seeking legal advice. And in disputes that involve a substantial amount of money for the individual, the legal costs to resolve the dispute can also be significant and unaffordable. Consequently ODR, with its lower cost structure, provides an opportunity for extending access to justice to many people. ODR also has the potential to enhance access not just generally, but for disadvantaged groups specifically. Barriers due to distance, confinement, sight or hearing impairment can be removed or reduced through technology.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[1]</a></span></p>
<p>ODR can be considered to comprise online alternative dispute resolution (OADR) and online courts. OADR may be defined as dispute resolution outside the courts, based on information and communications technology. OADR originally emerged in the mid-1990s as a response to disputes arising from the expansion of ecommerce. As a result, it focused on using technology to resolve customer complaints and sought to support negotiation, mediation and arbitration. Today, it may go further and give rise to innovative ways to resolve disputes beyond the traditional categories of alternative dispute resolution (ADR). In contrast, online courts form part of the justice system and are therefore subject to institutional norms and legal requirements derived from the nature of the judicial function. The aim of this article is to provide an introduction to OADR.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[2]</a></span></p>
<p><strong>PROVIDING INFORMATION &ndash; PREVENTING DISPUTES?</strong></p>
<p>Before examining OADR, it should be remembered that the basic or first step in technology assisting dispute resolution is the provision of information or problem diagnosis. Access to information can assist in avoiding disputes as well as resolving them. This is often a straightforward guide to the law and may also provide guidance as to where to obtain further assistance. It can be designed to operate as a web page or as an app for a smart phone or tablet. It can be provided in a static format or in an interactive manner, but usually the aim is to employ technology to allow people to find the information most relevant to their particular problem. It can be stand-alone or, as will be seen below, incorporated into an OADR platform.</p>
<p>It must also be borne in mind that people may need information in the first instance to assist them to identify that the problem they confront is a legal problem, and that legal problems may arise in the context of other problems; so the first place that a person looks for information may not be a traditional source of advice about legal issues.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[3]</a></span></p>
<p>The use of technology to provide information or diagnose problems has been embraced by many universities through Law App courses. Georgetown University Law Center in Washington DC runs an elective course where teams of students are assigned to work with legal services organisations and, using software packages, build an application that will improve access to justice. The course culminates in the <em>Iron Tech Lawyer</em> contest, where the applications are judged by a panel of external experts.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[4]</a></span></p>
<p>This model has been adopted by some law schools in Australia. Melbourne Law School ran its <em>Law Apps</em> elective for the first time in semester 2, 2015. The course requires students to design, build and release a live legal expert system that can provide legal information to non-lawyers. Similar courses are available at UNSW Law school (<em>Designing Technology Solutions for Access to Justice</em>) and UTS Law school (<em>Allens Neota UTS Law Tech Challenge for Social Justice</em>).</p>
<p><strong>ONLINE ALTERNATIVE DISPUTE RESOLUTION</strong></p>
<p>OADR has seen several waves or generations of technology use. OADR may adapt existing technologies such as email, instant messaging, videoconferencing and Skype to allow disputants to communicate directly and to allow facilitators, mediators or arbitrators to be brought into a dispute resolution process as needed. An example is CDMC National&rsquo;s &lsquo;MODRON&rsquo; which facilitates online mediation.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[5]</a></span>&nbsp;This form of OADR seeks to provide a place or mechanism to resolve the dispute rather than simply providing sources of information or suggested steps, but there is still a human conducting the mediation or decision-making.</p>
<p>OADR can also employ &lsquo;expert systems&rsquo; or what is also called simple or rules-based artificial intelligence. To create the expert system, the system designers need to acquire expert knowledge from human experts and encode that knowledge into rules that will be applied based on the factual information obtained from the users. Expert systems collect facts from users through interview-style questions and produce answers based on a decision-tree analysis. This form of OADR goes beyond assisting what is otherwise traditional ADR by providing tools for communications and is used for &lsquo;idea generation, strategy definition and decision-making&rsquo;.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[6]</a></span>&nbsp;This has led two of the pioneers of OADR to observe that &lsquo;[o]nce a process moves online, its very nature begins to change&rsquo;.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[7]</a></span></p>
<p>Additionally or alternatively, OADR can replace or significantly reduce the role of humans and instead use advanced artificial intelligence (including algorithms, machine learning and big data) to become the third party that performs the mediation or decision-making.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[8]</a></span><span style="font-size: 10px;"> </span>An example is &lsquo;blind-bidding&rsquo; systems, which use multivariate algorithms to help parties arrive at the optimal outcome. The technology obtains information from the disputants as to how they rank or value issues within the dispute and then combines those outcomes to suggest solutions.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[9]</a></span></p>
<p><strong>CONCLUSION</strong></p>
<p>To date, technology has been used mainly to provide information, sometimes very effectively, and at other times in a manner that necessitates great patience on behalf of the person seeking to navigate reams of information while they look for what is relevant to their particular dispute.</p>
<p>However, technology holds the prospect of moving beyond information-provision and resolving disputes to providing access to justice at a much more affordable cost. The two will often be inextricably linked, as information is needed to understand a dispute and empower the disputants. Technology will then alter dispute resolution. It may alter it in subtle ways, such as by using SMS, instant messaging and videoconferencing to allow for real-time communication but without parties being present, or instead&nbsp;asynchronous communication such as through email or an online site. However, negotiation is still between the parties or an ADR-trained human acts as a facilitator, mediator or arbitrator.&nbsp;</p>
<p>As OADR develops, the change to dispute resolution may be more fundamental. The human who facilitates or arbitrates may be replaced by artificial intelligence. Initially, this would only be in highly structured disputes where the possibilities for resolution were more finite. Creative, out-of-left-field solutions may be beyond artificial intelligence. However, as time goes on the ability of artificial intelligence to creatively problem-solve may grow.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[10]</a></span></p>
<p>&nbsp;</p>
<p><em>This is an edited version of an&nbsp;article entitled &#39;Online Alternative Dispute Resolution&#39; that was published in full in the Jul/Aug 2017 edition of Precedent focusing on ADR &amp; Settlement.</em></p>
<p><img alt="" src="/sb_cache/blog/id/509/f/Michael Legg.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 150px;" /><strong>Professor Michael Legg</strong> is the Director of the Law Society of NSW Future of Law and Innovation in the Profession (FLIP) research stream at UNSW Law.&nbsp;In 2017 he was awarded Academic of the Year at the Lawyers Weekly Australian Law Awards for his innovative teaching of technology and legal practice, especially in relation to litigation and alternative dispute resolution, and engagement with the legal profession.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p style="text-align: center;">&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[1]</a> NADRAC, <em>Dispute Resolution and Information Technology Principles for Good Practice</em> (Draft) (March 2002). See also Christine Coumarelos et al, <em>Legal Australia-Wide Survey: Legal Need in Australia</em> (Law and Justice Foundation of NSW, 2012) 37-8 (discussing barriers to accessing legal advice).</p>
<p><a href="#_ednref1" name="_edn1" title="">[2]</a> For a discussion of online courts, see Michael Legg, &lsquo;The Future of Dispute Resolution: Online ADR and Online Courts&rsquo; (2016) 27 <em>Australasian Dispute Resolution Journal</em> 277.</p>
<p><a href="#_ednref1" name="_edn1" title="">[3]</a> Christine Coumarelos et al, above note 1, 39; American Bar Association &ndash; Commission on the Future of Legal Services, <em>Report on the Future of Legal Services in the United States </em>(2016) 14.</p>
<p><a href="#_ednref1" name="_edn1" title="">[4]</a> Law Society of New South Wales, The Future of Law and Innovation in the Profession (2017) 80. An explanation of the Georgetown University Law Center course is provided at &lt;<a href="https://www.youtube.com/watch?v=ipVpjtOEyA8">https://www.youtube.com/watch?v=ipVpjtOEyA8</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[5]</a> Commercial Disputes Management Centre (CDMC) &lt;<a href="https://www.cdmcnational.com.au/online-dispute-resolution">https://www.cdmcnational.com.au/online-dispute-resolution</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[6]</a> David Carneiro, Paulo Novais, Francisco Andrade, John Zeleznikow and Jose Neves, &lsquo;Online Dispute Resolution: an Artificial Intelligence Perspective&rsquo; (2014) 41 <em>Artificial Intelligence Review</em> 211, 215.</p>
<p><a href="#_ednref1" name="_edn1" title="">[7]</a> Ethan Katsh and Colin Rule, &lsquo;What We Know and Need to Know About Online Dispute Resolution&rsquo; (2016) 67 <em>South Carolina Law Review</em> 329, 330.</p>
<p><a href="#_ednref1" name="_edn1" title="">[8]</a> Scott Shackelford and Anjanette Raymond, &lsquo;Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR&rsquo; (2014) <em>Wisconsin Law Review</em> 615, 628; Suzanne Van Arsdale, &lsquo;User Protections in Online Dispute Resolution&rsquo; (2015) 21 <em>Harvard Negotiation Law Review</em> 107, 118-19.</p>
<p><a href="#_ednref1" name="_edn1" title="">[9]</a> Anjanette Raymond and Scott Shackelford, &lsquo;Technology, Ethics, and Access to Justice: Should an Algorithm Be Deciding Your Case? (2014) 35 <em>Michigan Journal of International Law</em> 485, 514-15.</p>
<p><a href="#_ednref1" name="_edn1" title="">[10]</a> Margaret Boden, &lsquo;Creativity and artificial intelligence&rsquo; (1998) 103 <em>Artificial Intelligence</em> 347.</p>
</div>
https://www.lawyersalliance.com.au/opinion/online-alternative-dispute-resolutionhttps://www.lawyersalliance.com.au/opinion/online-alternative-dispute-resolutionThu, 26 Apr 2018 00:00:00 +1000How technological change is expanding open justice<p>Today, open justice is mediated not only by mass media, but by social media too.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[1</a>]&nbsp;</span>Courtrooms are more accessible than ever before. For the most part, this should be celebrated. But the expansion of open justice also poses real challenges for courts.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[2]</a></span></p>
<p><strong>CHALLENGES FOR JUDICIAL CONTROL</strong></p>
<p>The media is not free to report on everything that goes on in court. Through exercise of inherent, implied, or statutory powers, courts depart from open justice by orders concealing information or restricting publication.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[3]</a></span>&nbsp;They do so to balance competing public interests.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[4]</a> &nbsp;</span>Commentators have questioned whether orders departing from open justice can be effective in an online world.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[5]</a></span></p>
<p>Consider the 2014 case of a suppression order granted in the Supreme Court of Victoria prohibiting publication of bribery allegations against several prominent foreign politicians, including Malaysian Prime Minister Najib Razak. The order was made under the <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/oca2013157/" target="_blank"><em>Open Courts Act </em>2013 (Vic)</a> in criminal proceedings involving subsidiaries of the Reserve Bank of Australia. The purpose of the suppression order, which was sought by the Department of Foreign Affairs and Trade and purported to apply throughout Australia, was to prevent damage to Australia&rsquo;s international relations. Australian media organisations initially complied, but a month after the order was made it was published on Wikileaks. Its details were widely reported in the international press, including on internet news websites that any Australian could access. Australian media organisations then applied to have the suppression lifted. In <em><a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/246.html" target="_blank">DPP (Cth) v Brady</a></em><span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[6]</a></span>&nbsp;Hollingworth J revoked the order, determining that its continuation was no longer necessary or desirable.</p>
<p>Despite her Honour&rsquo;s pains to stress that the decision should not encourage illegal leaks,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[7]</a></span>&nbsp;Melbourne academic Jason Bosland argues that it cannot be denied that the decision has that potential.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[8]</a></span>&nbsp;A person seeking to publish suppressed information could simply leak the information to Wikileaks and then apply for the order&rsquo;s revocation, relying on the principles that futile orders should not be made, and that orders that become futile should not be sustained.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[9]</a></span>&nbsp;Breach of confidence jurisprudence supports the proposition that courts will not provide relief to suppress information where that information is already in the public domain.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[10]</a></span></p>
<p><strong>THE &lsquo;FAIR&rsquo; TRIAL IN THE DIGITAL ERA</strong></p>
<p>The debate continues over what should be done about jurors&rsquo; exposure to information online. The traditional solution is a direction to the jury. In <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2010/20.html" target="_blank"><em>Dupas v R</em></a>,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[11]</a></span>&nbsp;a serial killer sought to undo a murder conviction by appealing to the substantial publicity that surrounded him and his previous crimes. In finding that the publicity would not preclude a fair trial, the High Court held that the trial judge&rsquo;s directions relieved the potential for jury prejudice.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[12]</a></span></p>
<p>Another solution is to do away with juries in favour of judges as arbiters of fact. Jurors can, and sometimes do, ignore directions.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[13]</a></span>&nbsp;Exposure to publicity can have a significant impact on juror decision-making.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[14]</a></span>&nbsp;It might be argued that judicial experience makes one better at behaving impartially and better at turning a blind eye. However, recent work by McEwen and Eldridge appeals to empirical legal scholarship in challenging this argument.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[15]</a></span>&nbsp;The research suggests that judges may be just as fallible as jurors.</p>
<p><strong>&lsquo;FAKE NEWS&rsquo; AND &lsquo;ALTERNATIVE FACTS&rsquo; ABOUT LAW</strong></p>
<p>In Australian courtrooms, judges have purported to influence the account of the court proceedings that is consumed by the general public, to varying degrees of success.</p>
<p>Courts often publish media releases on matters of significant public interest. For example, in December 2016, the Supreme Court of New South Wales tweeted a link to a summary of the decision to sentence Eddie Obeid to five years imprisonment for wilful misconduct in public office.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[16]</a></span></p>
<p>In other cases, the judgments themselves have been framed to influence reporting. In the baby Gammy case, an Australian couple entered into a commercial surrogacy arrangement with a Thai woman. As a result, twins were born in Thailand. The baby girl was brought to Australia, but her twin brother, Gammy, was not. It was widely and falsely reported that the couple had abandoned baby Gammy because he had Down syndrome. In <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/FCWA/2016/17.html" target="_blank"><em>Farnell v Chanbua</em></a>, Thackray CJ criticised the media and clarified that those reports were untrue.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[17]</a></span>&nbsp;The Court departed from usual family court practice and allowed publication of the details of the case, subject to strict conditions. Media outlets were permitted to publish the story only if they did not contact any of the persons involved, and were only able to use file footage as part of any story.</p>
<p>It is easier for courts to control what is not published, as opposed to what is published. When sensationalist coverage is disseminated online, it encourages contrarian commentary by the general public via social media. Writing extra-judicially, Chief Justice Marilyn Warren AC described the vitriol of anonymous comments on an ABC story on the &lsquo;Malaysia solution&rsquo; case.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[18]</a></span>&nbsp;She observed that a story can take on a life of its own online, which might perpetuate misunderstanding of the role of courts by the general population.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[19]</a></span>&nbsp;Online anonymity is a barrier to the courts combating &lsquo;alternative facts&rsquo; about law.</p>
<p><strong>THE EVOLUTION OF &lsquo;PUBLIC&rsquo; PROCEEDINGS</strong></p>
<p>Advances in technology have made it possible for the courts to engage directly with the community without relying on newsmedia organisations, changing what it means for courts to sit &lsquo;in public&rsquo;. Since 2013, the High Court has published audio-visual recordings of its proceedings on its website,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[20]</a></span>&nbsp;following the practice of courts around the world.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[21]</a></span> Similarly, it is standard practice for superior courts to publish their full judgments and sentencing remarks online, working together with institutions like AustLII.</p>
<p>Judges differ on whether the expansion of open justice is desirable. Before joining the High Court, Justice French articulated the legitimate concerns that broader coverage could negatively impact those participating in proceedings, and could even undermine the public confidence that open justice is supposed to serve.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[22]</a></span>&nbsp;Average citizens are unlikely to read an entire judgment, even in respect of cases that are of interest to them; mainstream media would only take soundbites of recorded proceedings that serve their story. These concerns are an impediment to more open justice. For example, in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2007/139.html" target="_blank"><em>R v Williams</em></a>, an application to film Carl Williams&rsquo; sentencing was rejected out of concern that coverage would not present an accurate, impartial and balanced account of the proceedings.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[23]</a></span></p>
<p>Some courts are adapting to encourage balanced reporting by making the law more intelligible to laypersons. The move to plain English is an older example of this, as is the trend towards judges providing introductions to and summaries of reasons.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[24]</a>&nbsp;</span>More recently, courts like the Supreme Court of New South Wales have created a social media presence to disseminate matters of public interest.</p>
<p>If the relationship is there, the media can be an ally in the courts&rsquo; mission to engage with the public.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[25]</a>&nbsp;</span>A number of Australian jurisdictions, including South Australia, Victoria and Western Australia, are allowing journalists to broadcast coverage of court proceedings in real time via social media like Twitter. Moves like these make our judicial processes more transparent.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[26]</a></span></p>
<p>In the 1980s, Justice Kirby commented on the judicial aversion to broadcasting court proceedings. He said that people would grow impatient at &lsquo;adherence to the old technology of information&rsquo;.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[27]</a></span>&nbsp;The technology has changed, but the impatience remains. When public impatience manifests online, it can undermine judicial control and traditional approaches to the principle of open justice. If courts adapt their approach and make the most of the technology, they can undermine the &lsquo;alternative facts&rsquo; of the trolls. They can expand open justice in a way that serves the ends of the principle, while catering for the realities of our time.</p>
<p>&nbsp;</p>
<p><strong>A longer version of this article was first published as&nbsp;&lsquo;Disrupted Justice: How Technological Change is Expanding Open Justice&rsquo; (2017) 139</strong><em><strong> Precedent </strong></em><strong>10</strong><em><strong>.&nbsp;</strong></em></p>
<p><img alt="" src="/sb_cache/blog/id/507/f/Michael Douglas.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 162px;" /></p>
<p><strong>Michael Douglas</strong> is a Senior Lecturer at UWA Law School, where he specialises in private international law and media law. He is a Consultant at Bennett + Co within the firm&rsquo;s commercial litigation and dispute resolution practice, editor of the <em>Media and Arts Law Review</em>, and reporter for the New South Wales Law Reports.&nbsp;</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p align="left"><a href="#_ednref1" name="_edn1" title="">[1]</a> L J Moran, &lsquo;Mass-Mediated &ldquo;Open Justice&rdquo;: Court and Judicial Reports in the Press in England and Wales&rsquo; (2014) 34(1) <em>Legal Studies</em> 143.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[2]</a> The Honourable JJ Spigelman, &lsquo;The Principle of Open Justice: A Comparative Perspective&rsquo; (2006) 29(2) <em>University of New South Wales Law Journal</em> 147, 166.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[3]</a> See generally M Douglas, &lsquo;The Media&rsquo;s Standing to Challenge Departures from Open Justice&rsquo; (2016) 37 <em>Adelaide Law Review</em> 69; Australian Law Reform Commission, &lsquo;8. Fair Trial &ndash; Open Justice&rsquo;, <em>Traditional Rights and Freedoms &ndash; Encroachments by Commonwealth Laws</em>, Report No. 129 (2016) 231-7.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[4]</a> <em>Re Hogan; Ex parte West Australian Newspapers Ltd</em> (2009) 41 WAR 288, 296 [33] (McLure P).</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[5]</a> See, eg, R Ackland, &lsquo;Wikileaks Gag Order: Open Justice is Threatened by Super Injunctions&rsquo;, <em>The Guardian</em> (online), 30 July 2004 <https: 2014="" 30="" commentisfree="" jul="" wikileaks-gag-order-open-justice-is-threatened-by-super-injuctions="" www.theguardian.com="">; R Burd, &lsquo;Is There a Case for Suppression Orders in an Online World?&rsquo; (2012) 17 <em>Media and Arts Law Review </em>107; D Barnfield, &lsquo;Effectiveness of Suppression Orders in the Face of Social Media&rsquo; (2011) 33(4) <em>Bulletin</em> 16; cf I F Buckley, &lsquo;In Defence of &ldquo;Take-Down&rdquo; Orders: Analysing the Alleged Futility of the Court-Ordered Removal of Archived Prejudicial Publicity&rsquo; (2014) 23 <em>Journal of Judicial Administration</em> 203.</https:></p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[6]</a> [2015] VSC 246.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[7]</a> <em>Ibid</em>, [80].</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[8]</a> J Bosland, &lsquo;Wikileaks and the Not-So-Super Injunction: The Suppression Order in <em>DPP (Cth) v Brady</em>&rsquo; (2016) 21 <em>Media and Arts Law Review</em> 34, 58-9.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[9]</a> <em>Westpac Banking Corporation v John Fairfax Group Pty Ltd </em>(1991) 19 IPR 513, 525; see generally N Witzleb, &lsquo;Equity Does Not Act in Vain: An Analysis of Futility Arguments in Claims for Injunctions&rsquo; (2010) 32(3) <em>Sydney Law Review</em> 503.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[10]</a> Cf <em>Attorney-General v Guardian Newspapers (No. 2)</em> [1990] 1 AC 109.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[11]</a> (2010) 241 CLR 237.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[12]</a> <em>Ibid</em>, 246-7 (French CJ, and Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[13]</a> For example, <em>R v K</em> (2003) 59 NSWLR 431; <em>R v Benbrika (Ruling Nos 35.01-35.11)</em> [2009] VSC 142.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[14]</a> N Mehrkens Steblay et al, &lsquo;The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review&rsquo; (1999) 23(2) <em>Law and Behaviour</em> 219.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[15]</a> R McEwen and J Eldridge, &lsquo;Judges, Juries and Prejudicial Publicity &ndash; Lessons from Empirical Legal Scholarship&rsquo; (2016) 41(2) <em>Alternative Law Journal</em> 110.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[16]</a> <em>R v Obeid</em> [2016] NSWSC 1815; see NSW Supreme Court, <em>Twitter</em> (15 December 2016) <https: 809211607389609984="" nswsupct="" status="" twitter.com=""><https: 809211607389609984="" nswsupct="" status="" twitter.com=""><https: 809211607389609984="" nswsupct="" status="" twitter.com="">.</https:></https:></https:></p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[17]</a> [2016] FCWA 17, [50].</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[18]</a> <em>Plaintiff M70/2-11 v Minister for Immigration and Citizenship</em> (2011) 244 CLR 144.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[19]</a> See above note 11, 52.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[20]</a> High Court of Australia, <em>Recent AV recordings</em> (2017) <http: cases="" recent-av-recordings="" www.hcourt.gov.au=""><http: cases="" recent-av-recordings="" www.hcourt.gov.au=""><http: cases="" recent-av-recordings="" www.hcourt.gov.au="">.</http:></http:></http:></p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[21]</a> For example, the Supreme Court of the United Kingdom: Supreme Court, <em>Supreme Court Live </em>(2017) <https: live="" www.supremecourt.uk=""><https: live="" www.supremecourt.uk=""><https: live="" www.supremecourt.uk="">.</https:></https:></https:></p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[22]</a> Justice RS French, &lsquo;Radio and Television Broadcasting in the Magistrates Courts &ndash; Is There a Future?&rsquo; (Speech delivered at the Association of Australian magistrates&rsquo; Conference, Fremantle, 10 January 2006).</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[23]</a> [2007] VSC 139.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[24]</a> <em>Ibid</em>, [39].</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[25]</a> See S Rodrick, &lsquo;Achieving the Aims of Open Justice: The Relationship Between the Courts, the Media and the Public&rsquo; (2014) 19(1) <em>Deakin Law Review</em> 123.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[26]</a> See further L Findlay, &lsquo;Courting Social Media in Australia&rsquo;s Courtrooms: The Continuing Tension between Promoting Open Justice and Protecting Procedural Integrity&rsquo; (2015) 27(2) <em>Current Issues in Criminal Justice</em> 237.</p>
<p align="left"><a href="#_ednref1" name="_edn1" title="">[27]</a> M Kirby, &lsquo;The Judges&rsquo; (The Boyer Lectures, ABC Radio, 1983).</p>
</div>
https://www.lawyersalliance.com.au/opinion/how-technological-change-is-expanding-open-justicehttps://www.lawyersalliance.com.au/opinion/how-technological-change-is-expanding-open-justiceThu, 12 Apr 2018 00:00:00 +1000Police accountability in Australia: Complaint mechanisms<p>Traditionally, police complaints are dealt with internally either by senior officers or specific departments within the police force. However, such complaint mechanisms often either appear to lack sophistication or, in some cases, to deliberately protect police officers guilty of misconduct.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[1]</a></span> Civilian review of complaints through an ombudsman or anti-corruption body is therefore an important first step in ensuring that police complaints are dealt with fairly and effectively.&nbsp;</p>
<p><strong>Current complaint mechanisms around Australia</strong></p>
<p><em><strong>New South Wales</strong></em></p>
<p>The Law Enforcement Conduct Commission (LECC) commenced operation in 2017. Created in response to recommendations made by former New South Wales (NSW) Shadow Attorney-General Andrew Tink,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[2]</a></span>&nbsp;the LECC replaced the Police Integrity Commission and the police oversight functions of the NSW Ombudsman.</p>
<p>Sadly, the LECC has not been granted all oversight power as recommended in the Tink Review. While the LECC is able to investigate allegations of police misconduct or excessive force that do not lead to serious injury or death, investigations of &lsquo;critical incidents&rsquo; will continue to be self-investigated by police with oversight from the LECC. However, the LECC&rsquo;s capacity to oversee such investigations effectively is restricted, as it is only permitted to observe interviews with the consent of the interviewee and the critical incident investigator.&nbsp;</p>
<p>Unlike the Ombudsman which preceded it, the LECC does not have the power to conduct &lsquo;public interest&rsquo; investigations, removing the ability for systemic investigations into police misconduct in NSW.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[3]</a></span></p>
<p><em><strong>Northern Territory</strong></em></p>
<p>The Northern Territory (NT) Ombudsman is able to receive and investigate complaints regarding the conduct of police officers and to make recommendations about action in relation to them. A complaint must be made within one year of the conduct subject to the complaint. In 2015-16, the Ombudsman received 498 approaches relating to police conduct, 11 of which were sustained. Sixty-eight complaints were dealt with by way of a complaint resolution process undertaken by NT Police.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[4]</a></span></p>
<p><em><strong>Queensland</strong></em></p>
<p>Police complaints in Queensland are overseen by the Crime and Corruption Commission (CCC) but are the primary responsibility of the Police Commissioner.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[5]</a></span>&nbsp;The CCC may issue guidelines regarding how complaints should be investigated, review and audit complaints, or investigate a complaint involving police corruption.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[6]</a></span></p>
<p><em><strong>South Australia&nbsp;</strong></em></p>
<p>The South Australian (SA) Office of the Police Ombudsman ceased operation in September 2017. Responsibility for police oversight now rests with the Office of Public Integrity (OPI) and is governed by the<em> <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/sa/consol_act/pcada2016293/" target="_blank">Police Complaints and Discipline Act </a></em><a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/sa/consol_act/pcada2016293/" target="_blank">2016 (SA)</a>. Management of complaints is primarily the responsibility of the Internal Investigations Section (IIS) of SA Police with oversight from the OPI. The OPI is able to direct the SA Police Commissioner in relation to the handling of complaints, reassess complaints and reports made by the IIS, or refer complaints to the Independent Commissioner Against Corruption for investigation.</p>
<p><em><strong>Tasmania</strong></em></p>
<p>Complaints against Tasmania Police are mainly dealt with internally. The Integrity Commission monitors investigations, conducts an annual audit of complaints and reports its findings to Parliament,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[7]</a></span>&nbsp;and is also able to conduct its own investigations. The Tasmanian Ombudsman ensures compliance by Tasmania Police with the requirements of police telephone interceptions, surveillance and controlled operations legislation.</p>
<p><em><strong>Victoria</strong></em></p>
<p>Most complaints regarding police conduct in Victoria are investigated internally by Victoria Police, with approximately 90%&nbsp;of complaints being referred for investigation to regional or local area commands.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[8]</a></span>&nbsp;The most serious of these complaints are investigated by Professional Standards Command (PSC), a department of Victoria Police.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[9]</a></span></p>
<p>Police complaints are overseen by the Independent Broad-Based Anti-Corruption Commission (IBAC) which replaced the Office of Police Integrity in 2013. Complaints regarding police personnel conduct<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[10]</a></span>&nbsp;can also be made directly to IBAC and account for 65%&nbsp;of the complaints that IBAC receives.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[11]</a></span>&nbsp;This figure is largely due to the requirement that the Chief Commissioner must notify IBAC of any complaint received,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[12]</a></span>&nbsp;and the outcome of the investigation of that complaint.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[13]</a></span>&nbsp;Once a complaint is referred to IBAC, it can either be dismissed, investigated or referred to the Chief Commissioner.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[14]</a></span>&nbsp;IBAC is also able to instigate own-motion investigations, and has the power to conduct public hearings.&nbsp;</p>
<p>The Victorian Parliament&rsquo;s IBAC Committee is currently holding an inquiry into the system for the oversight of police corruption and misconduct and will release its report no later than 30 June 2018.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[15]</a></span></p>
<p><strong>Independence and international obligations</strong></p>
<p>In <a href="http://www.worldcourts.com/hrc/eng/decisions/2014.03.27_Horvath_v_Australia.pdf" target="_blank"><em>Horvath v Australia</em></a>,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[16]</a></span>&nbsp;the UN Human Rights Committee held that, as a signatory to the International Covenant on Civil and Political Rights (ICCPR), Australia was under an obligation to ensure that perpetrators of human rights violations, and specifically those perpetrated by police authorities, are adequately held to account through an independent, effective and impartial investigation into their conduct.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[17]</a></span>&nbsp;This obligation extends to the states and territories.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[18]</a></span></p>
<p>There has been a growing call in some states for the creation of independent bodies empowered to investigate all complaints against police as well as decide on disciplinary outcomes. No such body currently exists in Australia, meaning that Australia is in breach of its international human rights obligations. International examples, including the Police Ombudsman of Northern Ireland, Office of Police Complaints (Washington DC) and the Law Enforcement Review Agency (Manitoba, Canada), provide best practice examples. There is also an historical Australian precedent, albeit short-lived. The Victorian Police Complaints Authority (the PCA) operated between 1986 and 1988. The PCA&rsquo;s willingness to act was evidenced by its complainant-focused attention to investigation. It operated a 24-hour complaint hotline and was willing to travel to complainants. It was also willing to exercise its power to investigate &lsquo;public interest&rsquo; complaints, which included complaints made by ordinary people about police abuses. It conducted thorough re-investigations of complaints where complainants raised concerns about the initial police investigation. Further, it had a high media profile on trends and issues relating to police misconduct. Unfortunately, the PCA was seriously under-funded by the government and hampered by badly drafted legislation. It was shut down by the government within two years of its commencement following a powerful backlash from the Police Association.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1" title="">[19]</a></span>&nbsp;To date, it remains Australia&rsquo;s only attempt at proper independent oversight of police.&nbsp;</p>
<p>&nbsp;</p>
<p><em>This is an extract from an article entitled &lsquo;Police Accountability in Australia: Complaint mechanisms and civil litigation&rsquo; that was published in full in the Nov/Dec 2017 edition of Precedent focusing on institutional liability.</em></p>
<p><strong>Nick Boag</strong> is a solicitor for the Police Accountability Project at the Flemington &amp; Kensington Community Legal Centre.</p>
<p><strong>Jeremy King</strong> is an Accredited Specialist in Personal Injury Law and Principal of Robinson Gill Lawyers.&nbsp;&nbsp;</p>
<p><strong>Merys Williams</strong> practises in injury law and police misconduct at Robinson Gill Lawyers.&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><a href="#_ednref1" name="_edn1">[1]</a> T Prenzler, &lsquo;Independent Investigation of Complaints&rsquo; in T Prenzler and J Ransley (eds), <em>Police Reform: Building Integrity</em> (Hawkins Press, 2002) 185, 186.</p>
<p><a href="#_ednref1" name="_edn1" title="">[2]</a> A Tink, <em>Review of Police Oversight</em> (2015) &lt;<a href="http://www.justice.nsw.gov.au/justicepolicy/Documents/review-police-oversight/review-police-oversight-final-report.pdf" target="_blank">http://www.justice.nsw.gov.au/justicepolicy/Documents/review-police-oversight/review-police-oversight-final-report.pdf</a>&gt; (the Tink Review).</p>
<p><a href="#_ednref1" name="_edn1">[3]</a> For a fuller critique of the LECC, see Police Accountability Project, &lsquo;New South Wales police complaints system fails on too many grounds&rsquo; (2017) &lt;<a href="http://www.policeaccountability.org.au/independent-investigations/why-the-nsw-law-enforcement-conduct-commission-is-no-model-for-victoria/" target="_blank">http://www.policeaccountability.org.au/independent-investigations/why-the-nsw-law-enforcement-conduct-commission-is-no-model-for-victoria/</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[4]</a> Northern Territory Ombudsman, <em>Annual Report 2015-16</em>.</p>
<p><a href="#_ednref1" name="_edn1">[5]</a> L Roth, &lsquo;External oversight of police conduct&rsquo; (Briefing paper No. 6, NSW Parliamentary Research Service, 2015) 32.</p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[6]</a> </span><em>Crime and Corruption Act </em>2001 (Qld), <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/caca2001219/s47.html" target="_blank">s47</a>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[7]</a> Integrity Commission, <em>Annual Report 2014-15</em>, 3.</p>
<p><a href="#_ednref1" name="_edn1">[8]</a> Independent Broad-Based Anti-Corruption Commission, <em>Audit of Victoria Police Complaints Handlings Systems at Regional Level: Summary Report</em> (2016), 5.</p>
<p><a href="#_ednref1" name="_edn1">[9]</a> <em>Ibid</em>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[10]</a> <em>Independent Broad-Based Anti-Corruption Commission Act </em>2011 (Vic), <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ibaca2011479/s52.html" target="_blank">s52</a>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[11]</a> IBAC, <em>Exposing Corruption: Annual Report 2015-16</em>, 17.</p>
<p><a href="#_ednref1" name="_edn1" title="">[12]</a> <em>Independent Broad-Based Anti-Corruption Commission Act </em>2011 (Vic), <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ibaca2011479/s57.html" target="_blank">s57</a>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[13]</a> <em>Ibid</em>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[14]</a> <em>Ibid</em>, <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ibaca2011479/s58.html" target="_blank">s58</a>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[15]</a> IBAC Committee, <em>Terms of Reference &ndash; Inquiry into the external oversight of police corruption and misconduct in Victoria</em> (2017) &lt;<a href="https://www.parliament.vic.gov.au/ibacc/inquiries/article/3799" target="_blank">https://www.parliament.vic.gov.au/ibacc/inquiries/article/3799</a>&gt;.</p>
<p><a href="#_ednref1" name="_edn1" title="">[16]</a> Human Rights Committee, Views: Communication No. 1885/2009, 110<sup>th</sup> sess, UN DOC CCPR/C/D/1885/2009 (22 April 2014) 17.</p>
<p><a href="#_ednref1" name="_edn1" title="">[17]</a> <em>Ibid</em>, [10].</p>
<p><a href="#_ednref1" name="_edn1" title="">[18]</a> International Covenant on Civil and Political Rights (ICCPR), art50.</p>
<p><a href="#_ednref1" name="_edn1" title="">[19]</a> I Freckelton, &lsquo;Shooting the Messenger: The Rise and Fall of the Police Complaints Authority&rsquo; in A Goldsmith (ed) <em>Complaints Against the Police</em> (Oxford University Press, 1991).</p>
</div>
https://www.lawyersalliance.com.au/opinion/police-accountability-in-australia-complaint-mechanismshttps://www.lawyersalliance.com.au/opinion/police-accountability-in-australia-complaint-mechanismsThu, 05 Apr 2018 00:00:00 +1000Sexual harassment in the legal profession<p><strong>WHAT IS SEXUAL HARASSMENT?</strong></p>
<p>The <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s28a.html" target="_blank"><em>Sex Discrimination Act</em> 1984 (Cth) s28A</a>&nbsp;(SDA) defines sexual harassment as making unwelcome sexual advances, unwelcome requests for sexual favours, or engaging in other unwelcome conduct of a sexual nature &lsquo;in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated&rsquo;. All of the states and territories have similar provisions.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[1]</a></span></p>
<p><strong>SEXUAL HARASSMENT IN THE LEGAL PROFESSION</strong></p>
<p>The Law Council of Australia&rsquo;s (LCA) &lsquo;National Report on Attrition and Re-engagement&rsquo; identified that 24% of female respondents reported having been sexually harassed in their current workplace in the legal profession compared with 8% of male respondents.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[2]</a>&nbsp;</span>This means that, in general, women lawyers are being sexually harassed at about the national rate for women of 25%.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[3]</a>&nbsp;</span></p>
<p>Women at the bar, however, report experiencing discrimination on the basis of gender and sexual harassment at more than twice the rate of women in the profession generally, with 55% of women barristers indicating that they have been sexually harassed in the workplace.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[4]</a></span></p>
<p>The evidence is more than just statistical; senior women in the profession are putting their hands up and saying &lsquo;me too&rsquo;. On the SBS program Insight, Jane Needham, former President of the Bar Council of NSW, shared her story of having been sexually harassed by a judge when she was in her first few years at the bar.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[5]</a></span></p>
<p>The Australian Human Rights Commission&rsquo;s (AHRC) 2012 report into sexual harassment in the workplace found that most people who experience harassment in the workplace do not report it.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[6]</a></span> &nbsp;Similar findings are repeated in every study. Obviously, this is not because there are no mechanisms for dealing with workplace harassment &ndash; there are model conduct rules which make sexual harassment in the workplace professional misconduct, as well as statutory actions under anti-discrimination laws.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[7]</a></span></p>
<p>According to New Matilda, the NSW Bar Association has urged victims of sexual harassment to come forward.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[8]</a></span>&nbsp;However, because &lsquo;targets of sexual harassment often respond passively to the conduct&hellip;organisational approaches which rely exclusively on individual complaints made by targets of harassment are unlikely to be successful&rsquo;.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[9]</a></span> &nbsp;The Victorian case of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2013/221.html" target="_blank"><em>GLS v PLP</em></a><span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[10]</a></span> is illustrative: the Tribunal in that matter found that the complainant had compelling reasons for not being more forceful in her rejection of the respondent:</p>
<p style="margin-left:36.0pt;">&lsquo;She did not want to upset Mr PLP or lose his support&hellip;He was in a position of authority and superiority&hellip;She certainly did not want to lose or fail to complete the placement which she had to complete to gain admission to practice.&rsquo;</p>
<p><strong>THE WAY FORWARD</strong></p>
<p>Nearly all of the states and territories&rsquo; relevant professional associations have adopted the LCA&rsquo;s model conduct rules for solicitors &nbsp;(the Rules). Sexual harassment is covered very briefly at 42.1.2 of the Rules.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[11]</a></span>&nbsp;But professional misconduct rules need to be backed up with appropriate policies and processes.</p>
<p>Expecting women to report sexual harassment appears to have been ineffectual, as it appears to continue unabated. It appears that there is still little perceived benefit in reporting sexual harassment. This would seem to argue in favour of a structural approach to the problem, rather than expecting individuals to be responsible for the regulation of the profession by speaking up, often to their professional detriment, against professional misconduct like sexual harassment and victimisation.</p>
<p>If an AHRC Report is saying that 21% of university students are experiencing sexual harassment on campus<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[12]</a></span>&nbsp;and 100% of lawyers are university graduates, then it is at least arguable that university is the place to start changing the culture. Modules on gender discrimination and sexual harassment and the consequences of professional misconduct could be included in law courses.</p>
<p>The National Attrition and Re-engagement Study (NARS) Discussion Paper<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[13]</a></span> &nbsp;in 2014 made the following recommendations in relation to sexual harassment and bullying in the legal profession:&nbsp;</p>
<p>&lsquo;Law firms, bar chambers and Constituent Bodies should:<br />
Combat bullying and sexual harassment</p>
<ul><li>communicate zero tolerance for bullying, harassment and discrimination.</li>
<li>develop and promote clear and accessible written policies and guidelines and complaint processes to address gender discrimination, sexual harassment and bullying.</li>
<li>develop and encourage participation in anti-bullying and harassment CPD programs.</li>
<li>appoint and resource trained and skilled health professionals and expert human resources personnel to assist those wishing to report bullying, harassment and discrimination, and assist them to a satisfactory outcome.&rsquo;</li>
</ul>
<p>The NARS Report sets out a number of options for addressing the underlying causes of women lawyers&rsquo; attrition rate. Those same underlying causes provide the foundation for sexual harassment in the profession.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[14]</a></span></p>
<p>McDonald and Flood&rsquo;s work on bystander interventions proposes that even though sexual harassment behaviour is often actively hidden by perpetrators and therefore not directly witnessed, bystander intervention can be critical to disrupting and changing a workplace culture that fosters sexual harassment and other gender-based forms of mistreatment.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[15]</a></span></p>
<p>Alternative business models as a means of increasing diversity in firms was one of the options proffered by the LCA in the NARS Report.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[16]</a></span>&nbsp;Taking into account the apparent correlation between increased numbers of women in senior positions and a decrease in the incidence of sexual harassment, higher numbers of women in authority in firms should go some way towards minimising sexual harassment and other forms of misconduct.&nbsp;</p>
<p>Given the link between hierarchical, male-dominated workplaces or professions and the incidence of sexual harassment,<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[17]</a></span>&nbsp;an increase in alternative legal services and so-called &lsquo;NewLaw&rsquo;<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[18]</a></span>&nbsp;type firms is to be welcomed. Organised differently to traditional hierarchical &lsquo;BigLaw&rsquo; firms, these alternatives offer a competing career option to women and put pressure on traditional firms to &lsquo;buck up&rsquo;.&nbsp;</p>
<p><strong>SUMMARY</strong></p>
<p>The #metoo phenomena and the Harvey Weinstein effect have been integral to the current rise in public awareness surrounding sexual harassment in the workplace. Whether or not that public interest is reflected in positive change remains to be seen. At any rate, the work of the LCA and the AHRC over the last five years has given the legal profession enough tools to start bringing about a change, and result in a more diverse legal profession where equality is a fact and not just a fantasy.&nbsp;<br />
&nbsp;</p>
<p><em>This is an edited version of an article that was published in full in the Jan/Feb 2018&nbsp;edition of Precedent&nbsp;focusing on women and the law.</em></p>
<p><img alt="" src="/sb_cache/blog/id/505/f/Adrienne - March 2018 (002).JPG" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 120px; height: 160px;" /></p>
<p>&nbsp;</p>
<p>Adrienne Morton is Manager Legal Support for the Tasmanian Department of State Growth. She is President of Tasmanian Women Lawyers and Treasurer of Australian Women Lawyers.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="edn1"><p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[1]</a> <em>Discrimination Act </em>1991 (ACT), s58; <em>Anti-discrimination Act </em>1977 (NSW), s22A; <em>Anti-discrimination Act</em> (NT), s22; <em>Anti-discrimination Act </em>1991 (QLD), s119; <em>Equal Opportunity Act </em>1984 (SA), s87; <em>Anti-discrimination Act </em>1986 (TAS), s17; <em>Equal Opportunity Act </em>2010 (Vic), s92; <em>Equal Opportunity Act </em>1984 (WA), s24.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[2]</a> Law Council of Australia, <em>National Attrition and Re-engagement Study (NARS) Report</em> (2014), 32.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[3]</a> AHRC, <em>Working without Fear: Results of the Sexual Harassment National Telephone Survey, </em>(2012) 4 &lt;<a href="https://www.humanrights.gov.au/our-work/sex-discrimination/publications/working-without-fear-results-sexual-harassment-national">https://www.humanrights.gov.au/our-work/sex-discrimination/publications/working-without-fear-results-sexual-harassment-national</a>&gt;.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[4]</a> <em>Ibid</em>.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[5]</a> <em>Insight</em>: <em>Where do women draw the line on sexual harassment in the workplace? </em>(Produced by Kyle Taylor, SBS Australia, 24 October 2017).</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[6]</a> See above note 3, 40.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[7]</a> Law Council of Australia, <em>Australian Solicitors Conduct Rules</em> (at 24 August 2015).</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[8]</a> &lsquo;NSW Bar Urges Victims of Sexual Harassment to Come Forward&rsquo;, <em>New Matilda</em> (online), 26 October 2017,&nbsp;&lt;<a href="https://newmatilda.com/2017/10/26/nsw-bar-association-urges-victims-of-sexual-harassment-to-come-forward/" target="_blank">https://newmatilda.com/2017/10/26/nsw-bar-association-urges-victims-of-sexual-harassment-to-come-forward/</a>&gt;</span><https: 10="" 2017="" 26="" newmatilda.com="" nsw-bar-association-urges-victims-of-sexual-harassment-to-come-forward=""><https: 10="" 2017="" 26="" newmatilda.com="" nsw-bar-association-urges-victims-of-sexual-harassment-to-come-forward=""><span style="font-size:14px;">.</span></https:></https:></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[9]</a> P McDonald and M Flood, &lsquo;Encourage. Support. Act! Bystander Approaches to Sexual Harassment in the Workplace (2012)&rsquo;, AHRC, 5.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[10]</a> [2013] VCAT 221 (13 March 2013) at 226-30.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[11]</a> The Law Society of Tasmania has only recently resolved to adopt the Model Conduct Rules although it will be some time before they are enacted as statutory rules. The Northern Territory is yet to adopt the Rules.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[12]</a> AHRC, <em>Change the Course: National Report on Sexual Assault and Sexual Harassment at Australian Universities</em>, (2017) 18-9.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[13]</a> Law Council of Australia, <em>National Attrition and Re-engagement Study (NARS): Discussion Paper</em> <em>March 2014</em>.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[14]</a> See above note 2, pt 7.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[15]</a> See above note 9, pts 3 and 4.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1" title="">[16]</a> See above note 2, 91.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[17]</a> See above note 2, 12.</span></p>
<p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">[18]</a> &lsquo;NewLaw&rsquo; was a term coined by Eric Chin in 2013 to describe &lsquo;disruptors&rsquo; in the legal landscape, as opposed to the traditional firm structure or &lsquo;BigLaw&rsquo; firm (itself a term coined by Dr George Beaton).</span></p>
</div>
https://www.lawyersalliance.com.au/opinion/sexual-harassment-in-the-legal-professionhttps://www.lawyersalliance.com.au/opinion/sexual-harassment-in-the-legal-professionThu, 22 Mar 2018 00:00:00 +1100A plaintiff need not be perfect<p>The workers&rsquo; compensation system is a minefield for plaintiffs. Having to state and re-state your injuries, being interrogated about your pain, and having to convince people about and justify your restrictions, leaves the ground fertile for credibility issues. Perceptions differ. Memories fade. Pain is relative. Injuries are not static, but they fluctuate. His Honour Justice Boddice of the Queensland Supreme Court commendably gave consideration to these factors in the matter of <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2017/320.html" target="_blank"><em>Cincovic v Blenner&rsquo;s Transport Pty Ltd</em> [2017] QSC 320</a>.</p>
<p>The plaintiff was employed by the defendant as a truck driver. On 30 March 2014, he was riding a pallet jack &lsquo;like a scooter&rsquo; (which was, according to the defendant, an incorrect and unsafe manner in which to ride it), to transport it through the depot to his truck. His colleague kicked the pallet jack which caused the plaintiff to fall, and he sustained compression fractures to C7, T1, T2, T3 and T4. The fall also resulted in a secondary psychiatric injury.</p>
<p>The defendant denied liability for the incident, alleging that it did not condone skylarking or horseplay among employees. This was accepted by the court. The defendant had provided all employees, including the plaintiff, with a code of conduct which restricted such activities, and its managers and supervisors gave evidence that they would instruct any employees acting recklessly to cease doing so immediately.</p>
<p>Boddice J found the plaintiff to be an unreliable witness: he exaggerated, tailored his evidence to enhance its acceptance, and even manufactured false documentary evidence. His Honour did not accept much of the plaintiff&rsquo;s evidence as to the circumstances of his employment, including that he received no training and that the defendant condoned skylarking.</p>
<p>That being said, there was sufficient evidence to show that the organisation&rsquo;s supervisors and managers had witnessed employees riding on pallet jacks incorrectly and, while they may have given instructions to those specific employees not to do so, no blanket prohibition of this had been communicated to all staff, and particularly not to the plaintiff. &lsquo;The failure of the defendant to instruct workers not to undertake that activity and to establish and enforce a system of work which did not permit such an activity&rsquo; was sufficient to show that the defendant had breached its duty of care to the plaintiff.</p>
<p>One significant oversight on the part of the plaintiff, however, was his failure to adduce evidence before the court that, had such an instruction been given to the plaintiff, he would have complied with it. This oversight meant that the plaintiff failed in his claim for direct liability.</p>
<p>The plaintiff fell off the pallet jack as a result of a colleague kicking the pallet jack, and the defendant was found vicariously liable for the resulting injury. The court determined that the event took place in the course of the plaintiff&rsquo;s employment, and there was sufficient connection to the plaintiff&rsquo;s work duties to engage the liability of the defendant.</p>
<p>In addition, the court determined that there was no contributory negligence on the part of the plaintiff. The plaintiff was unaware that it was unsafe to ride on the pallet jack in the method he employed. He was travelling at a moderate speed and did not anticipate that his colleague would kick him off.</p>
<p>With respect to damages, although the medical evidence did not change His Honour&rsquo;s perception of the plaintiff as regards his lack of reliability in recounting the circumstances leading up to and surrounding his injury, it did support the plaintiff&rsquo;s claim for a sizeable award of damages. His Honour found that the combination of his physical and psychiatric injuries rendered the plaintiff commercially unemployable and awarded total economic loss for the past and 70% loss for the future, with a further 25% vicissitudes deduction. In accordance with Schedule 9 of the <a href="https://www.legislation.qld.gov.au/view/pdf/2014-09-01/sl-2014-0189" target="_blank"><em>Workers&#39; Compensation and Rehabilitation Regulation</em> 2014</a>, an Injury Scale Value of 19 was awarded for general damages. The maximum available for the plaintiff&rsquo;s thoracic spine injury was 15, with a 25% increase to account for his cervical spine injury.&nbsp;</p>
<p>Future treatment of $40,000 was awarded for general practitioner consultations, medication and psychiatric treatment. An award of $25,000 was also made for care, despite the finding that the plaintiff had falsified invoices associated with the provision of lawn mowing services. The total judgment in favour of the plaintiff was for $874,669.70.</p>
<p>This judgment serves as a reminder to defendants in workers&rsquo; compensation cases that plaintiffs are not perfect, and are not required to be. Elements of fear, doubt and confusion will influence their evidence, and exaggeration or elements of untruthfulness when presenting their case will not necessarily result in a failed claim. Injury litigation is not a mathematical equation; we must remember that we are dealing with people. Their messy lives, their faults and annoying traits, their mistakes and their biases, and all that comes with that.</p>
<p>&nbsp;</p>
<p><span style="font-size:14px;"><img alt="" src="/sb_cache/blog/id/446/f/Michelle Wright - Shine Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 107px; height: 100px;" />Maurice Blackburn Lawyer <strong>Michelle Wright </strong>has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women&rsquo;s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advices.&nbsp;</span></p>
<p><span style="font-size:14px;">This article was originally published on Michelle&#39;s blog,</span><em><span style="font-size:14px;"> <a href="https://picasenote.wordpress.com/2018/01/22/a-plaintiff-need-not-be-perfect/" target="_blank">P.I. Case Note</a>.</span></em></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="http://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.</strong></a></p>
https://www.lawyersalliance.com.au/opinion/a-plaintiff-need-not-be-perfecthttps://www.lawyersalliance.com.au/opinion/a-plaintiff-need-not-be-perfectThu, 15 Mar 2018 00:00:00 +1100The NDIS and compensation<p><strong>BACKGROUND</strong></p>
<p>The National Disability Insurance Scheme (NDIS) is a no-fault disability insurance scheme that will be rolled out across Australia by the end of 2019. It is managed by the National Disability Insurance Agency (NDIA).</p>
<p>Being eligible for lump sum compensation or benefits via an existing statutory insurance scheme does not prevent someone from accessing the NDIS. However, these alternative sources of compensation will be taken into account by the NDIA in assessing eligibility for the NDIS, with funding reduced accordingly so as to prevent people effectively being compensated twice for the same injury.</p>
<p><strong>RELEVANT LEGISLATION AND OTHER INSTRUMENTS</strong></p>
<ul><li><a href="http://www9.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/ndisa2013341/" target="_blank"><em>National Disability Insurance Scheme Act</em> <em>2013</em> </a>(the Act)&nbsp;</li>
<li><a href="https://www.legislation.gov.au/Details/F2013L01414" target="_blank">National Disability Insurance Scheme (Supports for participants &ndash; Accounting for Compensation) Rules 2013</a> (the Rules)&nbsp;</li>
<li><a href="https://www.ndis.gov.au/html/sites/default/files/documents/og_compensation_action_not_commenced.pdf" target="_blank">Operational Guideline &ndash; Compensation &ndash; Recovery of NDIS Amounts &ndash; Action has not Been Commenced to Recover Compensation&nbsp;</a></li>
<li><a href="https://www.ndis.gov.au/html/sites/default/files/documents/og_compensation_not_received.pdf" target="_blank">Operational Guideline &ndash; Compensation &ndash; Recovery of NDIS Amounts &ndash; Compensation not Received but Action Commenced&nbsp;</a></li>
<li><a href="https://www.ndis.gov.au/html/sites/default/files/documents/og_compensation_received_judgement.docx" target="_blank">Operational Guideline &ndash; Compensation &ndash; Recovery of NDIS Amounts &ndash; Compensation Received by a Participant from&nbsp;a Judgment or Settlement</a></li>
<li><a href="https://www.ndis.gov.au/operational-guideline/compensation/12-state-or-territory-scheme.html" target="_blank">Operational Guideline &ndash; Compensation &ndash; Revise the Plan and Reduce the Supports &ndash; Compensation Received Under an Insurance Scheme or a Commonwealth, State or Territory Scheme</a></li>
<li><a href="https://www.ndis.gov.au/operational-guideline/compensation/11-agreement-to-give-up-compensation.html" target="_blank">Operational Guideline &ndash; Compensation &ndash; Revise the Plan and Reduce the Supports &ndash; Agreement to Give Up Compensation</a>; and</li>
<li><a href="https://www.ndis.gov.au/html/sites/default/files/documents/og_compensation_received_settlement.pdf" target="_blank">Operational Guideline &ndash; Compensation &ndash; Revise the Plan and Reduce the Supports &ndash; Compensation Received from&nbsp;a Judgment or Settlement</a>.</li>
</ul>
<p><strong>INTERACTION WITH EXISTING STATUTORY INSURANCE SCHEMES</strong></p>
<p>There will obviously be some overlap between the NDIS and existing workplace and motor vehicle injury insurance schemes (referred to as &lsquo;alternative schemes&rsquo; hereafter).</p>
<p>While there is no clear legal requirement for a potential NDIS participant to first access alternative schemes if eligible, the NDIS hypothetically has the power to direct them to do so.&nbsp;</p>
<p>Potential eligibility for an alternative scheme does not prevent someone from also applying for the NDIS, which can provide supports while eligibility for the alternative scheme is determined.&nbsp;</p>
<p>Once someone has been accepted into an alternative scheme, any funding and support already received will be taken into account by the NDIA. As a general rule, the funding for reasonable and necessary supports from the NDIS will be reduced by an amount equivalent to the value of the funding for similar supports received under the alternative scheme.&nbsp;</p>
<p>Whether the NDIS will provide additional funding in these circumstances depends largely on the types of care and supports funded by the alternative scheme. However, if a particular support is not funded by the alternative scheme but meets the NDIS criteria, then hypothetically it should be funded by the NDIS.</p>
<p>Where the NDIS provides funding to someone later deemed to be eligible for an alternative scheme, the NDIA may recover the cost of these directly from the alternative scheme. It is not recovered from the injured person.</p>
<p><strong>LUMP SUM COMPENSATION</strong></p>
<p><strong>Repayment of past NDIS supports</strong></p>
<p>The NDIS is entitled to be repaid if a participant recovers compensation for the type of care and supports that the NDIS has already been funding.</p>
<p>In some circumstances, the NDIA can recover the amount directly from the defendant or their insurer through the issue of a Preliminary Notice. That party must then inform the NDIA once they become liable to pay compensation and make the repayment before releasing the compensation to the injured person.</p>
<p>Otherwise, the participant will be responsible for the past repayment, so this amount must be included in the lump sum compensation claim.</p>
<p>Advice as to the repayment required can be obtained from the NDIA.</p>
<p><strong>Reductions in future NDIS funding</strong></p>
<p>The NDIA is entitled to reduce funding in any future NDIS plan in recognition of the fact that the participant has already received compensation for that injury from another source.&nbsp;</p>
<p>To assess the reduction, the NDIA will calculate the Compensation Recovery Amount (CRA). The calculation method will be different depending on which of the following applies:&nbsp;</p>
<p><strong>1.&nbsp;&nbsp; &nbsp;</strong>participant receives compensation by judgment or settlement that either fixes the NDIS component, or the NDIS component is &lsquo;objectively identifiable&rsquo;; or</p>
<p><strong>2.&nbsp;&nbsp; &nbsp;</strong>participant receives compensation by judgment or settlement and the NDIS component is not objectively identifiable (<a href="https://www.legislation.gov.au/Details/F2013L01414/Html/Text#_Toc360198453" target="_blank">s3.1(b)</a> Rules ).</p>
<p>The &lsquo;NDIS component&rsquo; is the amount of compensation awarded for care and support items that the NDIS funds.</p>
<p><em>Scenario 1 &ndash; NDIS component specified or can be objectively identified</em></p>
<p>To work out the CRA, the NDIS component is identified and amounts paid by the participant for past support are deducted. The final figure is the CRA and this cannot be less than nil.</p>
<p>We understand that this approach will be used only when the court has fixed an award for damages for care and support in a non-consent judgment, or where the participant is transferring benefits from an existing insurance scheme into a lump sum.</p>
<p>This method will not apply to any settlement by consent, regardless of the terms of the release or other supporting documentation. It will also not apply to court approval of a compromise.&nbsp;</p>
<p><em>Scenario 2 &ndash; NDIS component not specified or objectively identified</em></p>
<p>This will apply to all other settlements.</p>
<p>Calculation steps:</p>
<p><strong>1.&nbsp;&nbsp; &nbsp;</strong>Calculate the amount of compensation under settlement;</p>
<ul><li>Compensation refers to the gross amount of compensation, including any legal costs, either agreed or from &lsquo;all in&rsquo; settlement.</li>
<li>Costs should not be taken into account if they were already taken into account for the purpose of calculating a Centrelink preclusion period (that is, due to an &lsquo;all in&rsquo; settlement or agreed costs).</li>
</ul>
<p><strong>2.&nbsp;</strong>&nbsp; &nbsp;Subtract repayments (Medicare and Centrelink);</p>
<ul><li>Medicare and Centrelink are currently the only repayments taken into account.</li>
<li>Any other repayment (private health insurers, equipment providers, legal costs, etc) will not be taken into account.</li>
</ul>
<p><strong>3.&nbsp;&nbsp; &nbsp;</strong>Subtract amount that reflects the value of any preclusion under Centrelink or other relevant benefit;</p>
<ul><li>If no preclusion period has arisen and the participant made a claim for loss of income, then 50% of compensation is subtracted.</li>
<li>In rare cases where Centrelink has used a different amount, that amount will be used.</li>
<li>It is unclear how this will apply if the Centrelink preclusion period has already expired at the time of settlement.</li>
</ul>
<p><strong>4.&nbsp;&nbsp; </strong>&nbsp;Calculate the amount that the NDIS would have paid had the person been a participant from the time of the compensable event. If the remainder is greater than this amount, replace the remainder with that figure (that is, the lesser figure);</p>
<ul><li>The value of the hypothetical NDIS supports will obviously be very difficult for participants and their legal representatives to work out.</li>
</ul>
<p><strong>5.&nbsp;&nbsp; </strong>&nbsp;Subtract cost of past supports paid by participant;</p>
<ul><li>The value of past gratuitous attendant care will not be taken into account.</li>
<li>The value of past commercial care will not be taken into account if it was for care that the family could otherwise reasonably have been expected to provide.</li>
</ul>
<p><strong>6.&nbsp;&nbsp; </strong>&nbsp;Subtract any amounts repayable to NDIS for past support; and</p>
<p><strong>7.&nbsp;&nbsp;</strong> &nbsp;Subtract value of any reduction in previous plans due to compensation being received.</p>
<p>The remainder is the CRA. It will be re-calculated each year.</p>
<p><em>Applying the CRA</em></p>
<p>The CRA will be amortised over a period no longer than the remainder of the participant&rsquo;s expected lifetime. In other words, the remainder is divided by the number of years of life expectancy. The NDIS-funded care and support package will be reduced by that amount each year.</p>
<p>The total value of the participant&rsquo;s plan will still be calculated without reference to the CRA. However, the NDIS will provide funding only up to the point where the yearly CRA applies, and the participant will be expected to fund the remainder of the plan. Experience suggests that if the participant does not fund the remainder of the plan, they risk losing approval for those supports in the next plan on the basis that they were not required. The result will be that the new plan will be smaller but the CRA will still apply.</p>
<p>The NDIA actuaries assess life expectancy using the Australian Life tables and the &lsquo;Care and Needs Scale&rsquo;.&nbsp;</p>
<p>Because of uncertainty around a number of steps in the calculation process and the NDIA-assessed life expectancy, it will be extremely difficult for participants and their legal representatives to accurately calculate the CRA themselves. Instead, advice should be sought from the NDIA.</p>
<p><strong>COMPENSATION FROM INSURANCE POLICIES (TPD, INCOME PROTECTION, ETC)</strong></p>
<p>The definition of compensation in the Act excludes lump sums paid from insurance policies.</p>
<p><strong>AGREEMENT TO GIVE UP COMPENSATION</strong></p>
<p>If the participant has agreed to give up compensation for care and support, the NDIA is still entitled to calculate a hypothetical CRA and reduce funding in the normal way. This is presumably designed to prevent people giving up those rights in order to protect their NDIS entitlements.</p>
<p><strong>DIRECTIONS TO TAKE ACTION TO CLAIM COMPENSATION</strong></p>
<p>The NDIA can direct a participant or prospective participant to take action to claim compensation for personal injury if the NDIA believes that the person has an entitlement and has not taken reasonable action to make a claim. However, the NDIA can do so only if it believes that the person has &lsquo;reasonable prospects&rsquo; of success.</p>
<p>If someone fails to comply with the direction from the NDIA, their NDIS funding can be suspended. The NDIA also has the power to take over existing claims or pursue new claims on behalf of participants. If this power is used, the NDIA becomes liable for all legal costs.</p>
<p><strong>SPECIAL CIRCUMSTANCES</strong></p>
<p>Under <a href="https://www.legislation.gov.au/Details/F2013L01414/Html/Text#_Toc360198453" target="_blank">s3.10</a> of the Rules, the CEO can agree to waive or reduce the repayment or CRA due to the &lsquo;special circumstances&rsquo; of the case. There is no guidance on what might constitute special circumstances but the NDIA has indicated that this will generally be limited to hardship.</p>
<p><strong>CONTRIBUTORY NEGLIGENCE</strong></p>
<p>Where the compensation received by a participant has been reduced because of contributory negligence, the CRA is reduced by the same proportion as applied in reducing the size of the award.</p>
<p><strong>CONTACTING THE NDIS</strong></p>
<p>1800 800 110</p>
<p>compensation@ndis.gov.au</p>
<p>National Disability Insurance Agency<br />
GPO Box 700<br />
Canberra ACT 2601</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/503/f/Tom_Ballantyne.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 130px; height: 87px;" />Tom Ballantyne</strong> is a Principal in Maurice Blackburn&rsquo;s medical negligence department. He is a Law Institute of Victoria Personal Injury Accredited Specialist, is listed in the prestigious Doyle&rsquo;s guide, and is the Victorian President of the Australian Lawyers Alliance. He is also responsible for preparing Maurice Blackburn and its clients for the NDIS and has presented on this topic at the ALA National Conference and health, disability and community groups around the country.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/the-ndis-and-compensationhttps://www.lawyersalliance.com.au/opinion/the-ndis-and-compensationThu, 08 Mar 2018 00:00:00 +1100Hague Convention on the Civil Aspects of International Child Abduction<p>When the <a href="http://www.austlii.edu.au/au/other/dfat/treaties/1987/2.html" target="_blank">Hague Convention on the Civil Aspects of International Child Abduction</a>&nbsp;<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[1]</a></span><span style="font-size:10px;">&nbsp;</span>(Hague Abduction Convention) was ratified, it was no doubt envisaged that it would assist in protecting children from harm. However, in practice it is often having the effect of preventing women and children from escaping violent fathers. Like many protective measures introduced by the legal system, these provisions are now being used as a weapon against women and are infringing their human rights.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[2]</a></span></p>
<p>Since August 2016, Ms Arthur, a dual Australian and New Zealand citizen, has been fighting to keep her now six-year-old daughter Lucy with her in Australia. In November 2017, Ms Arthur&rsquo;s legal avenues of defence were finally exhausted when the Australian High Court refused her leave to appeal with a single sentence, saying that her appeal would be&nbsp;&#39;futile&#39;.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[3]</a></span>&nbsp;Ms Arthur&rsquo;s only consolation was that no costs were awarded against her.</p>
<p>Ms Arthur left New Zealand early in 2016 in an effort to finally end her relationship with her daughter&rsquo;s father, Mr Bates, who she claimed had subjected her and Lucy to regular and escalating violence, death threats and abuse. However, with assistance from the Central Authority of New Zealand and its Australian counterpart, Mr Bates successfully brought an application under child abduction provisions<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[4]</a></span>&nbsp;to compel Lucy&rsquo;s return.</p>
<p>The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed from the country of their habitual residence (or wrongfully retained overseas). The provisions have been enacted into Australian law through <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s111b.html" target="_blank">s111B</a> of the <em>Family Law Act </em>1975 (Cth) and the <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_reg/flacr1986455/" target="_blank"><em>Family Law (Child Abduction Convention) Regulations</em> 1986</a> (the Regulations). Under these laws, the applicant&rsquo;s legal costs<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[5]</a></span>&nbsp;are covered by the state but the defendant&rsquo;s costs are not. Ms Arthur was also unsuccessful in securing a grant of Legal Aid in defending the claim made by Mr Bates, despite having a learning disability and receiving welfare payments.</p>
<p>To bring an application, a petitioner must establish that they have custody rights in respect of the child and that they have been exercising those rights. The New Zealand Family Court had made orders in August 2011, which were not appealed, that Ms Arthur was to have &lsquo;exclusive responsibility for the child&rsquo;s day to day living arrangements.&rsquo; Mr Bates was granted only unspecified &lsquo;supervised contact at a Court approved supervised contact facility.&rsquo; Unfortunately, Mr Bates&rsquo; severely limited rights of access under New Zealand law were considered by Australian courts sufficient &lsquo;rights of custody&rsquo; for the purposes of a return application.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[6]</a></span>&nbsp;This is despite there being provision for a separate application process for international access under the Convention &ndash; which is effectively rendered redundant by this reasoning.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[7]</a></span></p>
<p>The New Zealand courts had also provided Ms Arthur with Final Protection Orders against Mr Bates for herself and Lucy, for an indefinite duration.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[8]</a></span>&nbsp;One of the few defences available under the Regulations is set out in <a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/flacr1986455/s16.html" target="_blank">reg16(3)(b)</a>, which is available when there is a grave risk that the child will be exposed to physical or psychological harm if returned.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[9]</a></span>&nbsp;However, neither the existence of these protection orders nor the accounts of two unrelated women, indicating that Mr Bates was in fact a serial domestic violence offender, were given weight by the trial judge. Facebook messages from Mr Bates&rsquo; earlier partner describing physical abuse during and after her pregnancy, for example, were disregarded. Subpoenaed police statements showing that yet another previous partner of Mr Bates, unknown to Ms Arthur, had also experienced violence and death threats of a similar nature, were found to have no probative value since the matter had not proceeded to conviction.&nbsp;</p>
<p>In reply to the evidence of violence, Lucy&rsquo;s father responded: &lsquo;I have never been involved in a physical altercation with any person&hellip;in my entire life&rsquo;. Despite the inherent improbability of this blanket denial and the strong indications that Mr Bates was in fact a serial perpetrator of domestic violence, neither the trial judge nor the appeal court<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[10]</a></span>&nbsp;found a grave risk that the child would be exposed to harm.</p>
<p>Instead, the trial judge determined that the child should be returned to New Zealand where their courts were equipped to deal with the matter. This failed to take account of the fact that orders had already been made in Ms Arthur&rsquo;s favour by New Zealand courts, and had proved ineffective. It disregarded her evidence that the police were often unresponsive to her complaints and that on the one occasion when Mr Bates was charged with assault, the charge was dismissed following a hearing due to the lack of corroborative evidence. Ms Arthur was clear that she never wanted to undergo cross-examination again, because she believed that the court system would be unable to protect her from Mr Bates in the circumstances.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[11]</a></span></p>
<p>Lucy, who is settled in Australia having completed her first year of school, must now be returned to New Zealand. Ms Arthur has been advised to apply to New Zealand courts for the necessary relocation orders, but limited access to Legal Aid in New Zealand restricts her ability to commence such proceedings. Although Legal Aid may be available to defend an application brought by the father, from his perspective this is unlikely to be necessary. This application of the Hague Abduction Convention has effectively subverted the existing orders of New Zealand courts as Ms Arthur is now too afraid to accompany her child, believing that Mr Bates is likely to exact violent revenge for her actions.</p>
<p>This case raises many issues in relation to access to justice, which is a major obstacle for vulnerable women like Ms Arthur who are not equipped to defend these cases either financially, intellectually or emotionally. Despite the waiver of court fees and the provision of pro bono legal representation, the cost of photocopying and printing appeal books in this case alone amounted to in excess of $3,000. It was only the assistance of the NSW Bar Association&rsquo;s Legal Assistance Referral Scheme that enabled these expenses to be met, and this assistance is available only to a limited few.</p>
<p>With the refusal to grant leave for this appeal, the Australian High Court has missed an opportunity to correct an imbalance and to strengthen the rights of women to secure their children&rsquo;s safety and well-being. On the current operation of the law, once a woman conceives a child, regardless of the father&rsquo;s subsequent level of involvement or conduct, she has unwittingly traded her right to liberty of movement and the freedom to choose her own place of residence if she wants to retain custody of her child.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">[12]</a></span>&nbsp; The Australian High Court has reaffirmed that, within this patriarchal legal system, resistance is futile.</p>
<p><strong><img alt="" src="/sb_cache/blog/id/501/f/Anna Kerr pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 141px;" /></strong></p>
<p><strong>Anna Kerr</strong> is the Founder and Principal of the <a href="https://feministlegal.org/" target="_blank">Feminist Legal Clinic</a>, Sydney, which works to advance the cause of feminism and champion the human rights of women and girls by providing legal support to feminist organisations, groups and services and the women who access them.&nbsp;</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
<hr align="left" size="1" width="33%" /><p><a href="#_ednref1" name="_edn1">[1]</a> The Convention came into force in Australia on 1 January 1987.</p>
<p><a href="#_ednref1" name="_edn1">[2]</a> J S Goldberg and S Shetty, &lsquo;Representing battered respondents under the Hague Convention on the civil aspects of international child abduction: A practice guide for attorneys and domestic violence victim advocates&rsquo; (Berkeley Goldman School of Public Policy, 2015).</p>
<p><a href="#_ednref1" name="_edn1">[3]</a> [2017] HCASL 301.</p>
<p><a href="#_ednref1" name="_edn1">[4]</a> <em>Family Law Act</em> 1975 (Cth) <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s111b.html" target="_blank">s111B</a>; <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_reg/flacr1986455/" target="_blank"><em>Family Law (Child Abduction Convention) Regulations </em>1986</a>.</p>
<div id="edn1"><p><a href="#_ednref1" name="_edn1">[5]</a> International Social Service Australia (ISS) or the Australian Central Authority, advises on costs for individual countries during the application process in relation to costs. Article 26 of the Hague Abduction Convention stipulates that each Central Authority shall bear its own costs in applying the Hague Abduction Convention. Australia has not made any reservation under Article 42 to declare that it is not bound to assume any costs resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice: <em>Family Law (Child Abduction Convention) Regulations </em>1986, <a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/flacr1986455/s30.html" target="_blank">reg30</a>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[6]</a> See<a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s111b.html" target="_blank"> s111B(4)</a> of the <em>Family Law Act</em> 1975 (Cth) and &lt;<a href="https://www.foleys.com.au/resources/The%20Hague%20Abduction%20Convention_Renwick.pdf">https://www.foleys.com.au/resources/The%20Hague%20Abduction%20Convention_Renwick.pdf</a>&gt; for a more detailed discussion on rights of custody under the Convention.</p>
<p><a href="#_ednref1" name="_edn1" title="">[7]</a> <em>Family Law (Child Abduction Convention) Regulations</em> 1986, <a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/flacr1986455/s25.html" target="_blank">reg25</a>.</p>
<div id="edn1"><p><a href="#_ednref1" name="_edn1" title="">[8]</a> <a href="http://www.legislation.govt.nz/act/public/1995/0086/57.0/DLM372193.htmlhttp://www.legislation.govt.nz/act/public/1995/0086/57.0/DLM372193.html" target="_blank">s45</a> of the <em>Domestic Violence Act</em> 1995 (NZ) provides that a final protection order continues in force until it is discharged pursuant to <a href="http://www.legislation.govt.nz/act/public/1995/0086/57.0/DLM372195.html" target="_blank">s47</a>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[9]</a> The High Court decision of <a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2001/39.html" target="_blank"><em>DP v Commonwealth Central Authority </em>[2001] HCA 39 </a>remains the leading Australian authority on the &lsquo;grave risk&rsquo; defence.</p>
<p><a href="#_ednref1" name="_edn1" title="">[10]</a> <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/111.html" target="_blank"><em>Arthur &amp; Secretary, Department of Family &amp; Community Services and Anor </em>[2017] FamCAFC 111 (29 June 2017)</a>.</p>
<p><a href="#_ednref1" name="_edn1" title="">[11]</a> <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2007/1703.html" target="_blank"><em>Department of Community Services v Hadzic</em> (2007) FamCA 1703</a> and <em>Bassi and Director-General, Department of Community Services </em>[1994] FLC 92-465 were cases where Australian courts failed to balance protecting the objectives of the Hague Convention and dealing with grave risk and domestic violence as an exception to protect mothers and children.</p>
<p><a href="#_ednref1" name="_edn1" title="">[12]</a> Australian Human Rights Commission, <em>Freedom of Movement </em>&lt;<a href="https://www.humanrights.gov.au/freedom-movement">https://www.humanrights.gov.au/freedom-movement</a>&gt;.</p>
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https://www.lawyersalliance.com.au/opinion/hague-convention-on-the-civil-aspects-of-international-child-abductionhttps://www.lawyersalliance.com.au/opinion/hague-convention-on-the-civil-aspects-of-international-child-abductionThu, 01 Mar 2018 00:00:00 +1100Arresting assumptions of being 'in custody': R v Osborne-Horton (2017)<p><span style="font-size:14px;"><strong>FACTS</strong></span></p>
<p>This case began, like many others before it, with the defendant getting drunk at the pub after work.&nbsp;</p>
<p>His girlfriend joined him, having just received a large body tattoo. They argued. The defendant said he would drive home. She tried to stop him. He insisted that he would, so she rang his father on her mobile to enlist his help, handing her phone to the defendant. Taking it from her before realising it was his father on the line, he pushed her phone back to her. This action constituted the substance of the allegation of common assault which was the only count (of the four charges) dismissed at the first instance hearing.</p>
<p>Desperate, she rang triple-0. Her evidence was that the emergency operator was interested more in whether she had suffered domestic violence. Police arrived at the defendant&rsquo;s utility and questioned him about his contact with his girlfriend. Police said his girlfriend alleged that he had shoved her with her phone. The defendant vehemently denied assaulting her. Police told him that he was under arrest for domestic assault and the two male officers pushed him up against the side of his ute and tried to handcuff him.</p>
<p>The defendant, clearly a physically strong young man, tore himself away from the grasp of the officers and ran away. This was captured on CCTV footage (obtained by the defendant).&nbsp;</p>
<p>He was run down a few minutes later further up the street with capsicum spray, drawn service revolvers and an officer shouting &ldquo;taser him!&rdquo;&nbsp;</p>
<p>He was charged with common assault, two counts of assault against police officers under <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s60.html" target="_blank">s60(1)</a> of the <em>Crimes Act </em>1900 (NSW) (Crimes Act) and with the common law offence of escaping lawful custody.&nbsp;</p>
<p>The case was heard at first instance by her Honour Magistrate Schurr of the NSW Local Court in May to June 2017. It was then heard on appeal in November 2017 before his Honour Judge Williams SC in the District Court of NSW.</p>
<p><span style="font-size:14px;"><strong>FIRST INSTANCE DECISION</strong></span></p>
<p><em><strong>Assault police charges (x2)</strong></em></p>
<p>At the heart of this matter is the police mistake in charging the defendant with the wrong section of the Crimes Act. The offence in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s60.html" target="_blank">s60(1)</a> Crimes Act of assault police does not contain the lower alternative of &lsquo;resist arrest&rsquo; as is contained in the <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s58.html" target="_blank">s58</a> Crimes Act provision.</p>
<p>As his lawyer, I admitted at first instance that the defendant had committed the offence of resist arrest, but that he had not been charged with a section encompassing this lower distinction.</p>
<p>I argued that moving his arms and torso to pull himself from the grasp of the police was not an assault as he did not: initiate contact with the officers; move towards them offensively nor strike any blow at them. What he did, I said, was rip himself away from their hold. The CCTV footage showed a repeated swinging motion from their grasp at roughly chest height, which eventually succeeded in him freeing himself from the hands and arms of the officers who were holding on to his upper body.</p>
<p>The defendant did not give evidence.</p>
<p>In the primary hearing, her Honour found that the assaults were proven because it appeared to her from the footage that the defendant, though never striking the officers, had swung his arms toward them, constituting a non-contact assault.</p>
<p><em><strong>Escape lawful custody</strong></em></p>
<p>Escape from lawful custody is a common law offence, which means that the prosecution bears the more unusual burden of not only proving the facts to support the charge, but also showing the parameters of the case law and the limits of its application to those facts before being able to prove the offence to the requisite standard of proof.</p>
<p>I submitted that the police prosecutor needed to prove not only that the defendant&rsquo;s actions were an escape (clearly, his actions in breaking free were) but that he was, at the time he escaped, indeed in custody at law. I said that to do this on these facts required the prosecutor to establish that &lsquo;custody&rsquo; commenced from the moment the words of arrest were spoken and physical control was attempted to be asserted over the arrestee. For this to be so, the prosecution would need some basis in the case law or legislation to support this conclusion.</p>
<p>However, our searches of the Australian case authorities on this offence failed to unearth a single case in which an escape from custody was in any circumstance other than some correctional or law enforcement building or vehicle, or curial precinct.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">1</a></span>&nbsp;The only local guidance I could find, and which I presented to the Court, came from the Queensland Supreme and District Court Bench Book (a code state) which stated that, &lsquo;[a] person is in lawful custody if he has been arrested <em>and detained</em> or imprisoned in a manner that has been authorised by law&rsquo;.<span style="font-size:10px;"><a href="#_edn1" name="_ednref1">2</a>&nbsp;</span>(emphasis added)</p>
<p>The defendant&rsquo;s case was not that, without a building or vehicle to be absconded from, dashing away could not be an escape custody; rather, where the onus of proof is a factual and a legal obligation for the prosecution to discharge, on these facts the prosecution had failed to show that an attempted arrest automatically renders a person in custody for the purposes of this offence. I argued that though it was possible to envisage escaping lawful custody outside the familiar custodial environs that these cases usually involved, without an authority that an attempted arrest equals custody, an obvious lack of control or compliance would suggest that there was no custody of the defendant at that point in time.</p>
<p>I argued that there was no custody because the defendant was never under the control of the officers. There was no authority in the Australian cases to show that uttering words of arrest alone constitutes being in custody. I said that the prosecution&rsquo;s burden of proving this at common law had not been met and that the charge must therefore be dismissed. The defendant could not, I said, escape from custody as this was a status that had not come into existence at that point, even if all that was required to satisfy this was physical control of the arrestee.</p>
<p>Without any prescribed place needing to be occupied or involved &ndash; such as a custodial or law enforcement environment &ndash; the fact that the police never had physical control or compliance of the defendant meant that the legal and factual onus the prosecution bears could not be made out.</p>
<p>However, her Honour found that the defendant could indeed be convicted of this offence by means of her Honour&rsquo;s reading of <a href="https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/leara2002451/" target="_blank"><em>Law Enforcement (Powers and Responsibilities) Act </em>2002 (NSW)</a>. Her Honour remained silent on the failure of the police to produce any case law to support this charge.</p>
<p><strong>Appeal of conviction</strong></p>
<p>These points were raised in our appeal against conviction before his Honour Williams DCJ, who allowed our appeal and dismissed all three of the charges against the appellant.</p>
<p>His Honour stated that he was as well placed as the first instance fact-finder to consider the effect of the CCTV footage. In his judgment, his Honour found that, from his viewing of the footage, he did not consider the appellant&rsquo;s arm movements to have been directed towards the police officers, but rather that &lsquo;the appellant&rsquo;s actions were to pull away from the grasp of the police&rsquo;. His Honour observed that the &rsquo;footage shows no more than an attempt to resist or escape the arrest&rsquo;, but the appellant was not charged with resist arrest.</p>
<p>His Honour said that the lack of guidance in statute and common law on whether the appellant was in &lsquo;custody&rsquo; at that time was &lsquo;interesting and surprising&rsquo;, and that the appellant could not be said to be in custody at the time he fled the arrest, as he was never under the control of the police in the first place.</p>
<p><span style="font-size:14px;"><strong>LESSONS FROM THIS CASE</strong></span></p>
<p>Police and prosecutors should take note from this case that, where there is any ambiguity possible in a suspect&rsquo;s physical actions against force applied in order to complete an arrest, laying a <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s60.html" target="_blank">s60(1)</a> charge without a back-up of resist arrest (<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s58.html" target="_blank">s58</a>) will mean that no conviction will result if the arrestee&rsquo;s actions are not found to constitute an assault against the police.</p>
<p>Two other lessons are discernible from the appeal of the assaults; the first is a practical one for defence lawyers, that where possible, if the police have not sought to obtain CCTV footage of an event that is the subject of a charge in a location where this might be thought to exist, this evidence should be sought to be obtained quickly, before the standard overwrite to footage occurs (which is between 7-30 days). Without the objective evidence of the footage from a local office building (that I obtained after some efforts) the somewhat different recollections of the two police officers would have proven difficult to undermine.</p>
<p>Second, and more broadly, it is of interest that the first instance judge found that, based on her viewing of the footage, the swinging of the defendant&rsquo;s arms constituted an assault against both officers. Whereas, on a rehearing of this evidence, the District Court judge watching the same footage came to the opposite conclusion; that the appellant&rsquo;s swaying body and swinging arms were an attempt to break free of the grasp of the police.</p>
<p>When it comes to different judicial officers interpreting the same actions captured on CCTV footage, truth, like beauty, lies in the eyes of the beholder.&nbsp;</p>
<div id="edn1"><p><strong><img alt="" src="/sb_cache/blog/id/499/f/Paul Blake headshot.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 125px; height: 125px;" /></strong></p>
<p>&nbsp;</p>
<p><strong>Paul Blake </strong>is Solicitor Director at <a href="http://www.blakelawyers.com/" target="_blank">Blake Lawyers</a>, Sydney, and an Accredited Specialist in Criminal Law.</p>
<p>&nbsp;</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<hr align="left" size="1" width="33%" /><p><span style="font-size:14px;"><a href="#_ednref1" name="_edn1">1</a></span> In the case of <em>R v Timmis</em> [1976] Crim LR 129 [UK] the defendant was found guilty of escape after being arrested and placed alone in a police vehicle. In one of the briefer and more phlegmatic escape custody incidents to occur in the English common law world, the defendant got out, walked across the road into a pub, drank a pint of beer and made no attempt to conceal himself. In this decision the case indicates that at common law in the UK, where there is no breaking out, once an arrest has occurred, absenting oneself is an escape from custody. This case is distinguishable clearly from our facts, in that a state of detention was prevailing in the English case consequent upon the completed arrest, regardless of how limited and tentative this custody was to prove.</p>
<div id="edn1"><p><a href="#_ednref1" name="_edn1">2</a> Queensland Courts, S<em>upreme and District Court Benchbook &ndash; Escape from Lawful Custody s142</em>, [1], &lt;<a href="http://www.courts.qld.gov.au/__data/assets/pdf_file/0004/86143/sd-bb-133-escape-from-lawful-custody-s142.pdf" target="_blank">http://www.courts.qld.gov.au/__data/assets/pdf_file/0004/86143/sd-bb-133-escape-from-lawful-custody-s142.pdf</a>&gt;<http: 0004="" 86143="" __data="" assets="" pdf_file="" sd-bb-133-escape-from-lawful-custody-s142.pdf="" www.courts.qld.gov.au=""><http: 0004="" 86143="" __data="" assets="" pdf_file="" sd-bb-133-escape-from-lawful-custody-s142.pdf="" www.courts.qld.gov.au="">.</http:></http:></p>
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https://www.lawyersalliance.com.au/opinion/arresting-assumptions-of-being-in-custody-r-v-osborne-horton-2017https://www.lawyersalliance.com.au/opinion/arresting-assumptions-of-being-in-custody-r-v-osborne-horton-2017Thu, 22 Feb 2018 00:00:00 +1100How are costs assessed in your state?<p><span style="font-size:18px;"><strong>How are costs assessed in your state?</strong></span></p>
<p><em>Read the first article of the series <a href="https://www.lawyersalliance.com.au/opinion/how-are-costs-calculated-in-your-state" target="_blank">here</a>, and the second article <a href="https://www.lawyersalliance.com.au/opinion/how-does-the-costs-process-work-in-your-state" target="_blank">here</a>.&nbsp;</em></p>
<p><img alt="" src="/sb_cache/blog/id/497/f/costs picture.jpg" style="width: 410px; height: 263px; border-width: 3px; border-style: solid; margin: 15px;" /></p>
<p>To kick off 2018 we thought we&rsquo;d show you exactly how costs are assessed in three jurisdictions &ndash; NSW, Queensland and Victoria. In our article earlier this month we looked at the procedural differences in each state. Now, read on to find out exactly who assesses costs in your state, how they are assessed, and what you need to do to have an assessment reviewed.</p>
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<td colspan="2" style="width:634px;height:46px;"><p><span style="font-size:18px;"><strong>New South Wales</strong></span></p>
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<td colspan="2" style="width:634px;height:27px;"><p><strong>Who has the authority to assess costs?</strong><br />
In NSW, there are around 55 court-approved costs assessors. You can access a list of the current costs assessors and the members of the Costs Assessor Rules Committee (CARC) <a href="http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_practiceprocedure/sco2_costsassessment/sco2_costsassessment.aspx" target="_blank">here</a>.</p>
<p><strong>What if you want a review of an assessment?</strong><br />
Each party has 30 days to review a costs assessor&rsquo;s determination from the date the Court forwards the certificate of determination to the parties: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s83.html" target="_blank">s83</a> of the <em>Legal Profession Uniform Law Application Act</em> 2014 (LPULAA). A review panel constituted by two costs assessors will conduct the review (<a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s82.html" target="_blank">s82</a> LPULAA), either affirming the cost assessor&rsquo;s determination or setting it aside and substituting the determination that, in its opinion, should have been made: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s85.html" target="_blank">s85</a> LPULAA.</p>
<p>Either party may appeal against a decision of the review panel to:</p>
<p>(a) the District Court. However, it first must apply for the leave of the Court if the amount in dispute is less than $25,000; or</p>
<p>(b) the Supreme Court. However, it first must apply for the leave of the Court if the amount in dispute is less than $100,000: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s89.html" target="_blank">s89(1)(b)</a> LPULAA.</p>
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<strong>Positives of NSW&#39;s model</strong></p>
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<strong>Negatives of NSW&#39;s&nbsp;model</strong></p>
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<ul><li>Costs assessors have a wide discretion, particularly when determining which costs are fair and reasonable: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s76.html?context=1;query=criteria;mask_path=au/legis/nsw/consol_act/lpulaa2014406" target="_blank">s76</a> LPULAA and <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpul333/s172.html" target="_blank">s172</a>&nbsp;Legal Profession Uniform Law (NSW) (LPUL).</li>
<li>Guidelines such as the<em><a href="http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_practiceprocedure/sco2_costsassessment/sco2_costsassessment_faqs/sco2_costsassessment_faqs.aspx" target="_blank"> Costs Assessment Rules Committee (CARC) Guideline for Costs Payable between Parties under Court Orders (Ordered or Party/Party Costs)</a></em> assist with uniformity in a jurisdiction where this is a known issue.</li>
<li>In contrast to Queensland&#39;s system of default assessments, costs assessors in NSW are required by law to give each party a reasonable opportunity to make submissions and must give them due consideration: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s69.html" target="_blank">s69(1)</a> LPULAA.</li>
<li>Although its practical application is unclear, costs assessors may choose to have an oral hearing. In considering these applications, the costs assessors won&rsquo;t be bound by the rules of evidence and may inform themselves on any matter in the manner they see fit: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s69.html" target="_blank">s69(1)</a> LPULAA.</li>
<li>There is no &lsquo;15 per cent rule&rsquo; (at least not in a party/party costs assessment), whereby if the costs claimed are reduced by 15 per cent or more that party is likely to be required to pay the costs of a costs assessment.<br />
&nbsp;</li>
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<p>&nbsp;</p>
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<ul><li>The wide discretion provided to costs assessors can have negative consequences, as costs determinations and reasons are not published and thus inconsistencies in assessments arise and/or are unexplained.</li>
<li>The high number of costs assessors may compromise uniformity and consistency in decision-making.</li>
<li>We come across numerous determinations in which the same issue has been determined quite differently by different costs assessors. For example, one assessor relied on one authority in finding that identifying and collating annexures was administrative, not legal, work. This meant it was covered by the hourly rates and should not be separately claimed. In other costs assessments, similar costs have been allowed. In some assessments a reduction based on proportionality is applied, while another costs assessor has strongly stated how it is not permissible to simply reason that a bill of $50,000 is disproportionate to a claim in which $25,000 is recovered, as that is the process of capping which is the jurisdiction of the Court under section 98 of the Act. That costs assessor was of the view that costs cannot be capped on assessment as the process of assessment requires a valuation of the work done.</li>
<li>There are few case law precedents based on actual certificates of determinations that can help with preparing submissions.</li>
<li>In solicitor/client disputes, a legal practitioner must pay for the cost of a costs assessment if their costs are reduced by 15 per cent or more on assessment (subject to the cost assessor&rsquo;s discretion): <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpul333/s204.html?context=1;query=15%25;mask_path=au/legis/nsw/consol_act/lpul333" target="_blank">s204</a> LPUL.</li>
<li>Despite the number of costs assessors, costs lawyers and costs consultants in NSW, the legal costs community is fragmented. This affects the uniformity of how costing principles and processes are tested. &nbsp;&nbsp;</li>
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<td colspan="2" style="width:634px;height:46px;"><p><span style="font-size:18px;"><strong>Queensland</strong></span></p>
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<td colspan="2" style="width:634px;height:27px;"><p><strong>Who has the authority to assess costs?</strong><br />
In Queensland, there are about 45 court-approved costs assessors. You can find the full register of approved costs assessors <a href="http://www.courts.qld.gov.au/__data/assets/pdf_file/0010/89956/register-approved-cost-assessors.pdf" target="_blank">here</a>.</p>
<p><strong>How is a costs assessor appointed?</strong></p>
<p>In both <u>standard</u><strong> </strong>and <u>solicitor/client</u> matters:<br />
&nbsp;<br />
If both parties agree to appoint a costs assessor, they can file a request for consent order of registrar with the registry (Form 59A <em>Uniform Civil Procedure Rules</em> 1999 (UCPR)). If they can&rsquo;t agree on appointing a costs assessor, a judge or magistrate will appoint one at a directions hearing. &nbsp;<br />
&nbsp;<br />
In <u>solicitor/client</u> matters, the court that will appoint a costs assessor depends on the amount of the itemised bill:<br />
&nbsp;&nbsp;<br />
&bull;&nbsp;&nbsp; &nbsp;If the costs statement is under $150,000 &ndash; the Magistrates&rsquo; Court.<br />
&bull;&nbsp;&nbsp; &nbsp;If the costs statement is between $150,000 and $750,000 &ndash; the District Court.<br />
&bull;&nbsp;&nbsp; &nbsp;If the costs statement is in excess of $750,000 &ndash; the Supreme Court.</p>
<p><strong>What will a costs assessor determine?</strong><br />
In <u>standard</u> matters a costs assessor will determine the costs of the costs assessment, as well as the liability of the parties to pay those costs. They will issue a certificate of costs within 14 days, a copy of which is provided to each party.<br />
&nbsp;<br />
The parties may apply to the registrar for a consent order if they reach settlement before a costs assessor is appointed: <a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_reg/ucpr1999305/s666.html" target="_blank">s666</a> UCPR. The costs assessor will issue a certificate in the accepted amount if settlement is reached after a costs assessor is appointed.</p>
<p><strong>What if you want a review of an assessment?</strong></p>
<p>In <u>standard</u><strong> </strong>matters:<br />
&nbsp;<br />
If you don&rsquo;t agree with the costs assessor&rsquo;s assessment of costs, you have 21 days after receiving it to request written reasons for the decision. The costs assessor then has another 21 days to provide them.<br />
&nbsp;<br />
If you&rsquo;re still not satisfied with the assessment you can ask a court to review it, so long as you&rsquo;re within 14 days of receiving the certificate of costs or written reasons for the decision.<br />
&nbsp;<br />
In <u>solicitor/client</u> matters:<br />
&nbsp;<br />
You have 14 days after receiving the costs assessor&rsquo;s certificate to request written reasons. Again, the costs assessor must supply these within 21 days. You can also ask a court to review the costs assessor&rsquo;s decision within 14 days of receiving the certificate of costs or written reasons for the decision.</p>
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<strong>Positives of Queensland&#39;s model</strong></p>
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<strong>Negatives of Queensland&#39;s&nbsp;model</strong></p>
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<ul><li>The appointed costs assessor decides the assessment procedure.</li>
<li>In deciding this, the costs assessor may consider solicitor or counsel&rsquo;s fees, the quantum of the costs, the parties&#39; interests, the way in which the matter was conducted, the quantum of the case, the nature and significance of the case, and any other relevant circumstances.</li>
<li>Scale rates promote a uniform approach in claiming costs.</li>
<li>As the &lsquo;necessary and proper&rsquo; test is more stringent in standard costs matters (<a href="http://www9.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_reg/ucpr1999305/s702.html" target="_blank">s702</a> of the UCPR), cost assessors have limited scope for discretion.</li>
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<ul><li>The high number of costs assessors and decision-makers makes it difficult to apply scales and relevant principles in a uniform manner.</li>
<li>If a party fails to serve a notice of objection within 21 days of being served with a costs statement, the other side can apply to the court to have a costs assessor conduct a default assessment. If the costs assessor is satisfied that the costs statement was correctly served, they will assess the costs without necessarily considering each item and issue a certificate for the assessed costs (including the costs of assessment).</li>
<li>Considering the different tests for solicitor/client and standard costs disputes, it is difficult to convert a solicitor/client itemised bill into a standard costs statement.</li>
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<td colspan="2" style="width:634px;height:46px;"><p><span style="font-size: 18px;"><b>Victoria</b></span></p>
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<td colspan="2" style="width:634px;height:27px;"><p><strong>Who has the authority to assess costs?</strong><br />
In Victoria, the Costs Court, a division of the Supreme Court of Victoria, hears and determines all costs matters that arise from the state&rsquo;s courts and tribunals. It also hears costs disputes between legal advisers and their clients.<br />
&nbsp;<br />
The Costs Court consists of an Associate Justice, a Judicial Registrar and two Costs Registrars. The Costs Court may reduce costs if it considers that they have not been reasonably incurred, that they are excessive, or that they are not reasonable or proportionate to the complexity, issue and amount in dispute.</p>
<p><strong>What test will a costs assessor apply?</strong><br />
When assessing party/party taxations, the Costs Court will look at whether costs have been reasonably incurred and are of a reasonable amount. The costs of taxation will be calculated in line with the jurisdictional scale of costs: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.36.html" target="_blank">Order 63.36(5)</a> of the Supreme Court Rules (SC Rules).</p>
<p><strong>What if you want a review of an assessment?</strong><br />
There is a 14-day time limit on seeking a review or reconsideration of a Costs Court order: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.56.1.html" target="_blank">Order 63.56.1</a> of the SC Rules.<br />
&nbsp;<br />
A costs judge, judicial registrar or a costs registrar has the power to review or reconsider their own decisions: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.56.1.html" target="_blank">Order 63.56.1</a> and <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.56.2.html" target="_blank">Order 63.56.2</a> of the SC Rules.<br />
&nbsp;<br />
When a judicial registrar or a costs registrar reviews or reconsiders their own decision, a costs judge can, in turn, review this: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.56.4.html" target="_blank">Order 63.56.4</a> of the SC Rules.<br />
&nbsp;<br />
A Supreme Court judge can then review a costs judge&rsquo;s review or reconsider their own, a judicial registrar&rsquo;s or a costs registrar&rsquo;s decision: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.57.html" target="_blank">Order 63.57</a> of the SC Rules.</p>
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<strong>Positives of Victoria&#39;s model</strong></p>
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<strong>Negatives of Victoria&#39;s&nbsp;model</strong></p>
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<ul><li>The limited number of decision-makers facilitates a system that promotes uniformity and consistency. &nbsp;</li>
<li>At mediation, the parties can ask for an estimate of the likely costs that will be allowed at a taxation. This can help to resolve the matter early and cost-effectively.</li>
</ul>
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<td style="width:356px;height:36px;">
<ul><li>If the amount of the professional charges and disbursements in any bill of costs is reduced by 15 per cent or more, the Costs Court has a discretionary power not to award any costs to the legal adviser under <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.85.html">Order 63.85</a> of the SC Rules.</li>
<li>The Court must apply the rule unless the parties&rsquo; submissions give it reason not to: <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2016/77.html" target="_blank">Laro-Bashford &amp; Ors v Mihos [2016] VSC 77 (7 March 2016)</a>.</li>
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<p><em><strong>And finally&hellip;</strong></em><br />
Every costs jurisdiction operates differently and, in some cases, there are even differences within the same state. That means costs assessors can reach different decisions, even when presented with the same information.<br />
&nbsp;</p>
<p><strong>Romaine Abraham </strong>is a lawyer at <a href="http://www.bstone.com.au/" target="_blank">Blackstone Legal Costing</a>. With experience across New South Wales and Victoria, Romaine is skilled in obtaining the best commercial results for clients.<br />
<strong>​​​​</strong></p>
<p><strong>Dipal<img alt="" src="/sb_cache/blog/id/483/f/Dipal Prasad - Blackstone Legal Costing.jpg" style="margin-left: 10px; margin-right: 10px; float: left; width: 100px; height: 114px;" /> &nbsp;Prasad</strong> is an associate at <a href="http://www.bstone.com.au/" target="_blank">Blackstone Legal Costing</a>, one of the largest&nbsp;legal costing firms in Australia with experienced&nbsp;costs&nbsp;lawyers and&nbsp;consultants in Brisbane, Melbourne and Sydney. Dipal is committed to maximising costs recovery for successful parties in litigation and minimising costs liability for unsuccessful parties.<br />
&nbsp;</p>
<p>For more information about Blackstone Legal Costing or to subscribe to their monthly blog, please visit: <a href="http://www.bstone.com.au/notice-of-objection-news/" target="_blank">http://www.bstone.com.au/notice-of-objection-news/</a>.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/how-are-costs-assessed-in-your-state-141https://www.lawyersalliance.com.au/opinion/how-are-costs-assessed-in-your-state-141Thu, 15 Feb 2018 00:00:00 +1100Security for costs: part 2<p><span style="font-size:14px;"><em>Read the first article of the series <a href="https://www.lawyersalliance.com.au/opinion/security-for-costs-part-1" target="_blank">here</a>.</em></span></p>
<p><strong><span style="font-size:14px;">DID THE ATE POLICY IN <a href="http://Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited [2017] FCA 699" target="_blank">THIS CASE</a> OFFER ADEQUATE SECURITY?</span></strong></p>
<p><span style="font-size:14px;">Before undertaking a consideration of the respondents&#39; specific objections, Yates J looked at the applicable legislation relating to the court&#39;s power to make an order for security: <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fcoaa1976249/s56.html" target="_blank">s56</a> of the <em>Federal Court of Australia Act </em>1976 (Cth), <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/num_reg/fcr2011n134o2011269/s19.01.html" target="_blank">r19.01(1)</a> of the<em> Federal Court Rules</em> 2011 (Cth) and <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s1335.html" target="_blank">s1335(1)</a> of the<em> Corporations Act </em>2001 (Cth).</span></p>
<p><span style="font-size:14px;">Justice Yates observed that whereas <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fcoaa1976249/s56.html" target="_blank">s56</a> of the <em>Federal Court Act</em> provides the court with unconditional power and discretion to order that security be provided by an applicant, <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s1335.html" target="_blank">s1335(1)</a> of the <em>Corporations Act</em> was conditioned on the requirement that for security to be ordered there needed to be evidence at the outset that the corporation would be unable to pay the costs of the defendant if the corporation was unsuccessful in its claim. Therefore, <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s1335.html" target="_blank">s1335(1)</a> included a threshold requirement before security could be ordered.</span></p>
<p><span style="font-size:14px;">His Honour stated that in his view there was no reason why an appropriately worded ATE policy might not be an acceptable form of security and, furthermore, it might also be capable of negating the threshold requirement contained in <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s1335.html" target="_blank">s1335(1)</a> of the <em>Corporations Act.</em></span></p>
<p><span style="font-size:14px;">In this case Vannin had accepted that security should be provided and consequently, Yates J did not need to embark on a consideration of whether the threshold contained in <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca2001172/s1335.html" target="_blank">s1335(1)</a> was met. In any event, these two distinct questions, which Yates J referred to as &#39;convergent questions&#39;, ultimately come down to an analysis of the second issue: whether the form of security proposed was sufficient in the circumstances.</span></p>
<p><span style="font-size:14px;">Justice Yates considered several UK cases which accepted an ATE policy as an adequate form of security, and noted the position of the courts in those cases which rejected certain concerns raised by the respondents in this case.</span></p>
<p><span style="font-size:14px;">For example, as to the argument that a breach by the insured of a term of the policy could mean that the insurer was able to limit or even cancel the policy, it was held in a case of <a href="http://www.bailii.org/ew/cases/EWHC/TCC/2013/147.html" target="_blank"><em>Geophysical Services Centre Co v Dowell Schlumberger (ME) Inc</em> [2013] EWHC 147 [TCC] </a>that this was only a theoretical possibility and the risk was, on the same basis, merely a theoretical possibility.</span></p>
<p><span style="font-size:14px;">As stated by Yates J: &#39;The point here is that, even with an apparently solvent claimant company that is currently trading profitably, there is always a theoretical possibility that things can change unexpectedly and, perhaps, quite rapidly.&#39;</span></p>
<p><span style="font-size:14px;">However ultimately, Yates J was not persuaded to accept the AmTrust policy that had been secured by Vannin in this case as adequate security for the respondents&#39; costs. In reaching this conclusion, Yates J was persuaded by the following factors:</span></p>
<ul><li><span style="font-size:14px;">The insured under the policy was Petersen, not the respondents, and while Petersen (and Mr and Mrs Petersen)&nbsp;had given undertakings to the court that they would make claims on the policy, those undertakings did not include undertakings to sue AmTrust to enforce any claim if AmTrust failed to respond positively to any claim, and evidence as to Petersen&#39;s financial circumstances suggested that it would not have the financial resources to sue AmTrust in any event.</span></li>
<li><span style="font-size:14px;">&nbsp;The undertakings provided were undertakings to the court rather than to the respondents, so the respondents had no direct contractual rights against the Petersen parties and while the recent enactment of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) meant that the respondents might be able to bring a claim directly against AmTrust, the exercise of this right was subject to certain restrictions.</span></li>
<li><span style="font-size:14px;">&nbsp;The potential consequences of non-disclosure (including non-fraudulent non-disclosure) included an ability on the part of AmTrust to reduce its liability or even cancel the policy, and there was inadequate evidence as to the circumstances under which the funder had obtained the policy (Vannin had not given any evidence on the issue).</span></li>
<li><span style="font-size:14px;">The AmTrust policy contained a significant number of exclusions, and while Petersen argued that, in line with the UK position, the associated risk was merely theoretical, the concept of risk &#39;reflects a value judgment&#39; that is likely to differ across different parties.</span></li>
</ul>
<p><span style="font-size:14px;">The respondents had illustrated this by way of the argument that the cost of providing a deed of indemnity at $550,000 indicated that the insurer considered the risk it was exposed to under the policy to be significantly less than the risk it would be exposed to if it provided an unconditional deed of indemnity in favour of the respondents.</span></p>
<p><span style="font-size:14px;">Even if it were to be accepted that the risk of certain exclusions was theoretical, some exclusions had an associated risk that was much more real, such as a clause in the policy which allowed AmTrust to exclude liability for any costs caused by the negligence of Petersen&#39;s legal representatives.</span></p>
<p><span style="font-size:14px;">In this case, the respondents asserted that they were likely to make arguments at trial criticising the way Petersen&#39;s case had been conceptualised and pleaded and, if they did so, that might cause AmTrust to rely on this exclusion on the basis that it supported negligence on the part of Petersen&#39;s legal representatives.</span></p>
<p><span style="font-size:14px;">The risk of cancellation before a costs order was made would mean that there would be no indemnity available under the policy for any costs incurred prior to the cancellation.</span></p>
<p><span style="font-size:14px;">There was a risk that if Petersen became insolvent, any proceeds received under the AmTrust policy may not be made available to the respondents.</span></p>
<p><span style="font-size:14px;">The clause in the policy which required Petersen to resist any application for summary assessment of the respondents&#39; costs conflicted with the Petersen parties&#39; overarching obligation to the Court to act in a way so as to facilitate the just resolution of disputes according to law.</span></p>
<p><span style="font-size:14px;"><strong>CONCLUSION</strong></span></p>
<p><span style="font-size:14px;">Justice Yates clearly stated that, in appropriate circumstances, an ATE policy could satisfy as security for a respondent&#39;s costs, and that it may even suffice to refute the usual presumption in favour of security being ordered.</span></p>
<p><span style="font-size:14px;">However, the reasons articulated by his Honour as going against the respondents in this case appear to contain some &#39;deal breakers&#39;, and would be difficult for a respondent to overcome in any similar application in the future, unless the insurance policy differed substantially in its terms and conditions from that obtained by Vannin in this case.</span></p>
<p><span style="font-size:14px;">While this is a developing area of law, the factors that weighed against a finding in Petersen&#39;s favour suggest that it may be some time before an Australian court is prepared to accept an ATE policy as providing adequate security for a respondent&#39;s costs. It is likely to require a change from the mindset that such policies contain restrictions and limitations that render them inherently risky compared with one that adopts a less cautious approach.</span></p>
<p><span style="font-size:14px;">For now, it appears that parties seeking to rely on insurance policies when confronted with a security for costs application should consider the alternative of offering to provide a deed of indemnity to the other party, or potentially, offering security by way of an assignment of the benefit of the policy to the respondent.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/495/f/Kim May - Litigation Lending.png" style="border-width: 1px; border-style: solid; margin: 3px 5px; float: left; width: 80px; height: 126px;" />Kim May</strong> is Senior Litigation Manager at <a href="http://www.litigationlending.com.au/" target="_blank">Litigation Lending</a>, Sydney.</span></p>
<p><span style="font-size:14px;"><em>This is the second&nbsp;article in a series of two. Her&nbsp;<a href="https://www.lawyersalliance.com.au/opinion/security-for-costs-part-1" target="_blank">first article</a> introduced the case discussed here,&nbsp;</em></span><em><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2017/699.html" target="_blank">Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited [2017] FCA 699</a>,</em><span style="font-size:14px;"><em> and the overarching concerns it raised.</em></span></p>
<p><span style="font-size:14px;">A version of this article first appeared in the December 2017 edition of the <em>Australian Restructuring Insolvency and Turnaround Association Journal</em>, 34-6.</span></p>
<p><br />
<span style="font-size:14px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><span style="font-size:14px;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article</a>.&nbsp;</strong></span></p>
https://www.lawyersalliance.com.au/opinion/security-for-costs-part-2https://www.lawyersalliance.com.au/opinion/security-for-costs-part-2Thu, 08 Feb 2018 00:00:00 +1100Security for costs: part 1 <p><span style="font-size:14px;">A recent decision of the Federal Court considered whether evidence as to the existence of a policy of after the event (ATE) insurance constituted adequate security for the respondents&#39; costs.</span></p>
<p><span style="font-size:14px;">When liquidators or administrators look into the affairs of companies under their control, their investigations can sometimes lead to the potential for claims to be brought for the benefit of creditors. However, given the fact that these companies are often without funds, the ability to prosecute a claim can often be impeded if a defendant/respondent makes an application for security for its costs and such application cannot be met.</span></p>
<p><span style="font-size:14px;">Traditionally, defendants and courts have preferred security in the form of payment of funds into court or the provision of a bank guarantee. Both these traditional forms of security involve an upfront payment of funds, which are then effectively quarantined until the outcome of the litigation is known. This adds to the financial burden on the plaintiff/applicant of running the claim, particularly if ATE insurance has also been obtained, as the premiums for such insurance are relatively high.</span></p>
<p><span style="font-size:14px;">In <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2017/699.html" target="_blank"><em>Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited</em> [2017] FCA 699</a>, the issue at stake before the Court was whether it was adequate for the applicant to provide security for the respondents&#39; costs by adducing evidence of an ATE policy it had obtained.</span></p>
<p><span style="font-size:14px;">The applicant company (Petersen) brought a representative proceeding on behalf of a class who had all suffered losses arising from their purchase of a financial product which was operated by one of the respondents, DOH Graham Limited (DOH), as agent for the other respondent, the Bank of Queensland Limited (BOQ). The proceedings were funded by a litigation funder, Vannin Capital Operations Limited (Vannin), a funder registered in Malta.</span></p>
<p><span style="font-size:14px;">Vannin indicated that it was prepared to provide reasonable security for the respondents&#39; costs, but sought to provide it by way of evidence of a policy of ATE insurance that it had obtained from AmTrust Europe (AmTrust). The respondents on the other hand asserted that the AmTrust policy did not provide adequate security and that the traditional forms of security, being payment into court or the provision of a bank guarantee, should be ordered instead.</span></p>
<p><span style="font-size:14px;">At least one of the respondents, DOH, had indicated that it might accept an appropriately worded unconditional indemnity in its favour from AmTrust. However, Petersen/Vannin did not offer such indemnity, instead preferring to test the Court&rsquo;s attitude towards the insurance policy. Relevantly, two Victorian Supreme Court cases handed down in September 2015 held that an appropriately worded deed of indemnity from an ATE insurer may suffice as security for a defendant&#39;s costs.</span></p>
<p><span style="font-size:14px;"><strong>CASE AGAINST ACCEPTING THE ATE POLICY AS SECURITY</strong></span></p>
<p><span style="font-size:14px;">BOQ and DOH were united in their opposition to Petersen&#39;s position and put forward a number of arguments as to why the AmTrust Policy was inadequate as security, including the following:</span></p>
<ul><li>The respondents were not parties to the AmTrust policy and AmTrust had assumed no direct obligation towards them.</li>
<li>The policy contained several exclusions, which potentially brought into play circumstances that were beyond the respondents&#39; control.</li>
<li><span style="font-size:14px;">The inclusion in the policy of an under-insurance clause which would be detrimental to the respondents if enlivened as it would decrease the amount payable under the policy.</span></li>
<li><span style="font-size:14px;">The burden of enforcement of the policy if AmTrust failed to respond to a claim.</span></li>
</ul>
<p><span style="font-size:14px;">Aside from policy exclusions, there was the potential for the policy to be cancelled or the amount payable reduced if Petersen either fraudulently or non-fraudulently breached its duty of disclosure to AmTrust.</span></p>
<p><span style="font-size:14px;">The requirement in the policy that Petersen and its legal representatives control the litigation conflicted with the funder&#39;s entitlement in the funding agreement to exercise a certain level of control, which could lead to a breach of the policy.</span></p>
<p><span style="font-size:14px;">Certain obligations contained in the policy ran counter to &#39;the proper administration of justice&#39;, as they required Petersen&#39;s legal representatives to defer management of any adverse costs arguments to AmTrust, and this might result in Petersen taking a position that was not reasonably sustainable and may lead to Petersen&#39;s legal representatives breaching their paramount duty to the court.</span></p>
<p><span style="font-size:14px;">The cost of obtaining an unconditional deed of indemnity in favour of the respondents (which Vannin did not do) was approximately $550,000 to cover a potential costs liability of $5.5 million. This substantial amount suggested that the risk assumed by AmTrust under the deed was significantly higher than the risk it assumed under the policy, and by implication the policy provided significantly less comfort to the respondents than an unconditional deed of indemnity would.</span></p>
<p><span style="font-size:14px;"><strong>OVERARCHING CONCERN</strong></span></p>
<p><span style="font-size:14px;">One overarching concern voiced by DOH was that acceptance of the AmTrust policy as security &#39;renders DOH hostage to the conduct of the applicant (and funder), whose interests are opposed to those of DOH in this litigation. There can be no presumption that they have acted, and will continue to act, in such a way as to ensure the limits of the AmTrust Policy remain or will remain available...&#39;:&nbsp;[61].</span></p>
<p><span style="font-size:14px;">Insurance policies are by their nature full of conditions and obligations, which serve to define and limit the insurer&#39;s risk. But parties who have paid very significant premiums for those policies are likely to be highly motivated to do everything possible to keep them on foot and not do anything to prejudice the likelihood of them responding positively to a claim.</span></p>
<p><span style="font-size:14px;">The arguments advanced by the respondents focused on an assertion that the risk to the respondents of accepting the ATE policy as security was a significantly higher risk than that assumed by Petersen and Vannin.</span></p>
<p><span style="font-size:14px;">For example, the respondents were essentially blind to the process by which Vannin had applied for the policy (and any relevant non-disclosure); they had no control over any circumstances which might trigger exclusions, cancellations or reduced cover; and the evidence suggested that even the insurer considered that the risk assumed by it under the policy was substantially less than the risk it would assume if it provided a deed of indemnity to the respondents.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/495/f/Kim May - Litigation Lending.png" style="border-width: 1px; border-style: solid; margin: 3px 5px; float: left; width: 80px; height: 126px;" />Kim May</strong> is Senior Litigation Manager at <a href="http://www.litigationlending.com.au/" target="_blank">Litigation Lending</a>, Sydney.</span></p>
<p><span style="font-size:14px;"><em>This is the first article in a series of two. Her&nbsp;<a href="https://www.lawyersalliance.com.au/opinion/security-for-costs-part-2" target="_blank">next article</a> discusses whether the ATE policy in this case offers adequate security.</em></span></p>
<p><span style="font-size:14px;">A version of this article first appeared in the December 2017 edition of the <em>Australian Restructuring Insolvency and Turnaround Association Journal</em>, 34-6.</span></p>
<p><br />
<span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><span style="font-size:14px;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article</a>.&nbsp;</strong></span></p>
https://www.lawyersalliance.com.au/opinion/security-for-costs-part-1https://www.lawyersalliance.com.au/opinion/security-for-costs-part-1Thu, 01 Feb 2018 00:00:00 +1100How does the costs process work in your state?<p><strong><span style="font-size:18px;">How does the costs process work in your state?</span></strong></p>
<p><span style="font-size:14px;"><em>Read the first article in the series <strong><a href="https://www.lawyersalliance.com.au/opinion/how-are-costs-calculated-in-your-state" target="_blank">here</a></strong>.</em></span><strong><span style="font-size:18px;"><img alt="" src="/sb_cache/blog/id/493/f/Costs image.jpg" style="width: 550px; height: 227px; border-width: 3px; border-style: solid; margin: 15px;" /></span></strong></p>
<p>The costs jurisdiction in every state works differently. Our last article focused on the different ways costs are calculated and applied in different Australian jurisdictions.&nbsp;</p>
<p>The start of another year is the perfect time to consider the main differences in costs processes between the three main jurisdictions we practice in &ndash; NSW, Queensland and Victoria &ndash; with a specific focus on the advantages and disadvantages of each of the systems.</p>
<p>The next article will focus on the powers of costs assessors in each of the jurisdictions.</p>
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<td colspan="2" style="width:634px;height:46px;"><p><span style="font-size:18px;"><strong>New South Wales</strong></span></p>
</td>
</tr>
<tr>
<td colspan="2" style="width:634px;height:27px;"><p><strong>How are costs claims heard?</strong><br />
In NSW, all costs assessment proceedings are paper based.</p>
<p><strong>How do you commence proceedings?</strong><br />
Before making a party/party or a solicitor/client application for assessment of costs, you will first need to serve a bill of costs on the costs respondent. The other party then has 21 days to file a notice of objections to the bill (30 days in the case of a client). A reply to these objections must be made within a further 21 days (although extensions are invariably granted if requested).</p>
<p>Clients in solicitor/client disputes must file an application for assessment of costs within 12 months of a bill being provided to them. Clients can also make a complaint to the Office of the Legal Services Commissioner in relation to a costs dispute under some circumstances pursuant to <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/lpul333/" target="_blank">Div1 of Pt5.2</a> of the <em>Legal Profession Uniform Law</em> 2014.</p>
<p>Solicitors in solicitor/client disputes can only commence proceedings to recover costs claimed in a bill of costs 30 days after service of that document on a client, subject to provisions set out within <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpul333/s194.html" target="_blank">s194</a> of the <em>Legal Profession Uniform Law</em> 2014.</p>
<p>If you file an application for assessment of costs, the assessor may fix a timetable if they have not received submissions or need additional information.</p>
<p><strong>What happens next?</strong><br />
If the costs claimed are less than $100,000, the costs assessor has three months after a matter is referred to it to issue a certificate of determination with reasons for determination. This is subject to the assessor receiving all information and is subject to any timetable they have fixed. If the costs claimed are more than $100,000 they have six months to do this.</p>
</td>
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<td style="width:278px;height:29px;"><p style="text-align: center;"><br />
<strong>The positives</strong></p>
</td>
<td style="width:356px;height:29px;"><p style="text-align: center;"><br />
<strong>The negatives</strong></p>
</td>
</tr>
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<td style="width:278px;height:36px;">
<ul><li>A paper-based system is often less costly as it doesn&rsquo;t require oral submissions or court attendances.</li>
<li>Parties receive a written record of all submissions and reasons for determination.</li>
<li>Parties have time to formulate submissions in response.<br />
&nbsp;<br />
&nbsp;</li>
</ul>
<p>&nbsp;</p>
</td>
<td style="width:356px;height:36px;">
<ul><li>Parties do not have an opportunity to clarify their position in person, in a mediation or taxation type setting.</li>
<li>The waiting period of 3-6 months to receive a costs assessor&#39;s determination is a deterrent to seeking assessment of costs. This time frame extends if either party delays in providing submissions and responses.</li>
<li>The costs assessors&rsquo; fees are payable by the party/parties ordered to pay costs of costs assessment.</li>
<li>There are just over 50 court-approved costs assessors in NSW with various levels of experience. This, coupled with a deregulated costs regime (with costs generally based on hourly rates rather than scale fees), leads to less predictable outcomes.</li>
<li>Only parties to proceedings receive written decisions, again lending itself to less predictable outcomes.</li>
<li>Unlike Victorian and federal jurisdictions, there is no procedure or opportunity like a taxing registrar or a mediator providing an estimate of the amount likely to be recovered if the matter proceeds to assessment.</li>
</ul>
</td>
</tr>
</tbody>
</table>
<table border="1" cellpadding="0" cellspacing="0" class="contentTable" width="0">
<tbody>
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<td colspan="2" style="width:640px;height:46px;"><p><br />
<span style="font-size:18px;"><strong>Queensland</strong></span></p>
</td>
</tr>
<tr>
<td colspan="2" style="width:640px;height:27px;"><p><strong>How are costs claims heard?</strong><br />
As in NSW, all costs assessment proceedings in Queensland are paper based.</p>
<p><strong>How to commence a costs claim</strong><br />
To claim costs on a standard or party/party basis, you will need to prepare a costs statement. You can find information about the procedure you must follow <a href="http://www.courts.qld.gov.au/courts/supreme-court/costs-assessment-party" target="_blank">here</a>.</p>
<p>To claim costs on a solicitor/client basis, you must prepare an Itemised bill of costs. You can find more information about the procedure you must follow <a href="http://www.courts.qld.gov.au/courts/supreme-court/costs-assessment-legal-fees" target="_blank">here</a>.</p>
<p>In a solicitor/client dispute, clients also have the avenue of making a complaint to the Legal Services Commission about its solicitors&rsquo; billing practices.</p>
<p><strong>What happens next?</strong><br />
The parties have the option of choosing a costs assessor, by agreement, from a panel of about 45 court-approved costs assessors. Once the chosen costs assessor provides consent and once a consent order with respect to the assessor to be appointed is filed, the registrar can make appropriate orders and vacate the usual directions hearing date.</p>
<p>If the parties cannot agree on a costs assessor, the judge or magistrate appoints an assessor at the directions hearing.</p>
<p>The court-appointed costs assessor then undertakes an assessment of costs and provides a certificate of determination.</p>
</td>
</tr>
<tr>
<td style="width:278px;height:29px;"><p style="text-align: center;"><br />
<strong>The positives</strong></p>
</td>
<td style="width:362px;height:29px;"><p style="text-align: center;"><br />
<strong>The negatives</strong></p>
</td>
</tr>
<tr>
<td style="width:278px;height:36px;">
<ul><li>The parties have the liberty to agree on a costs assessor to perform the assessment by filing a request for a consent order with the registry and, if possible, be accompanied by the consent of the costs assessor. The registrar can make a consent order where appropriate and the directions hearing date will be vacated.</li>
<li>Submissions in response to any notice of objections are not ordinarily required.</li>
</ul>
</td>
<td style="width:362px;height:36px;">
<ul><li>There are minimal requirements to be appointed as a costs assessor (other than five years post-admission experience). Consequently, many of Queensland&rsquo;s approximately 45 court-appointed costs assessors have little experience or knowledge of costs.</li>
<li>Like NSW, there is a lack of certainty and consistency in Queensland as to what will or will not be allowed on a costs assessment, such decisions varying from costs assessor to costs assessor.</li>
<li>Due to the nature of the costs assessment process in Queensland, elements of &lsquo;forum shopping&rsquo; are often seen, that is, looking for a costs assessor that is more likely to assess costs favourably.</li>
<li>If the parties cannot agree on a costs assessor to perform the assessment, the judge or magistrate appoints an assessor at the directions hearing, adding to the costs of assessment.</li>
<li>One authority holds that, if the parties cannot agree on a costs assessor, the cheapest cost assessor is appointed: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCA/2014/63.html" target="_blank"><em>Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa &amp; Kepa </em>[2014] QCA 63</a>, at [34]. This is not necessarily a good thing because the cheapest is not the fastest or the most efficient.</li>
<li>The formality of filing affidavits and nominating costs assessors also adds to the costs of assessment.</li>
<li>The parties do not have an opportunity to clarify their position in person, in a mediation or taxation-type setting.</li>
<li>The party, or parties, ordered to pay the costs assessment will also be ordered to pay the costs assessor&rsquo;s fees.</li>
<li>Unlike the Victorian and federal jurisdictions, there is no opportunity to receive an early estimate of the costs likely to be recovered through a taxing registrar or mediator.</li>
</ul>
</td>
</tr>
</tbody>
</table>
<table border="1" cellpadding="0" cellspacing="0" class="contentTable" width="0">
<tbody>
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<td colspan="2" style="width:624px;height:46px;"><p><br />
<span style="font-size:18px;"><strong>Victoria</strong></span></p>
</td>
</tr>
<tr>
<td colspan="2" style="width:624px;height:27px;"><p><strong>Title</strong><br />
&nbsp;</p>
<p>How are costs claims heard?<br />
In Victoria, the Costs Court hears and determines all costs matters that arise from the State&rsquo;s courts and tribunals. It also hears costs disputes between legal advisers and their clients.</p>
<p>The Costs Court was created by the <a href="http://classic.austlii.edu.au/au/legis/vic/num_act/clacaoma200878o2008658/index.html#s14" target="_blank"><em>Courts Legislation (Costs Court and Other Matters) Act</em> 2008</a> which created a new <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/sca1986183/" target="_blank">Div2B</a> in the <em>Supreme Court Act</em> 1986.</p>
<p>How do you commence proceedings?<br />
You will need to file a summons for taxation and the bill of costs. In party/party taxations you will also need to include an information form and the costs order, judgment or deed or release, and the filing fee.</p>
<p>You won&rsquo;t need to pay a fee for filing an application for a summons for taxation in a solicitor/client dispute, so long as you&rsquo;re within the time limit.&nbsp;</p>
<p>Clients in practitioner/client disputes must file an application for assessment of costs within 12 months of a bill being provided to them. Clients can also make a complaint to the Office of the Victorian Legal Services Commissioner in relation to a costs dispute under some circumstances pursuant to Div1 of Pt5.2 of the Legal Profession Uniform Law (Victoria).</p>
<p>Solicitors in solicitor/client disputes can only commence proceedings to recover costs claimed in a bill of costs 30 days after service of that document on a client, subject to provisions set out within s194 of the Legal Profession Uniform Law (Victoria).</p>
<p><strong>What happens next?</strong><br />
All party/party bills of costs claiming less than $50,000 (including disbursements) will be sent directly to assessment: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/index.html" target="_blank">Pt 8 of O63</a> of the <em>Supreme Court (General Civil Procedure) Rules </em>2015 (SC Regulations).</p>
<p>All party/party bills of costs of more than $50,000 will be listed for mediation: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s50.07.html" target="_blank">O50.07(1)</a> of the SC Regulations.</p>
<p>The summons and bill of costs must be served at least 14 days before the hearing day named in the summons: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/s63.38.html" target="_blank">O63.38</a> of the SC Regulations.</p>
<p>The respondent must file and serve a notice of objection at least seven days prior to the mediation.</p>
<p><strong>Which scale applies: Party/party costs?</strong><br />
The scale that applies to party/party costs depends on which court you&rsquo;re appearing in:</p>
<ul><li>For Supreme Court matters, you will find the scale of costs at <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/index.html" target="_blank">Appendix A</a> of the <em>Supreme Court (General Civil Procedure) Rules</em> 2015.</li>
<li>For the County Court, costs are set out in the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/num_reg/ccicar2014n150o2014538/" target="_blank"><em>County Court (Chapter I Costs Amendment) Rules </em>2014</a>. From 6 October 2014, they&rsquo;re assessed at 80% of the Supreme Court scale.</li>
<li>For Magistrates&rsquo; Court matters, you will find the scale of costs at <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_reg/mcgcpr2010464/" target="_blank">Appendix A</a> of the <em>Magistrates&rsquo; Court General Civil Procedure Rules</em> 2010.</li>
<li>For Victorian and Civil Administrative Tribunal matters, costs are generally awarded on the County Court scale.</li>
</ul>
<p>&nbsp;<br />
<strong>Which scale applies: Solicitor/client costs?</strong><br />
In Victoria, solicitor/client costs are usually claimed pursuant to the costs agreement a legal adviser has with their client. The most common methods of charging legal work include:</p>
<ul><li><strong>According to time</strong>: charging the actual time spent on a task and ultimately the matter. Rates will vary according to the size and location of the practice, and the experience of the practitioner providing the service.</li>
<li><strong>By reference to scale</strong>: &nbsp;to the relevant scale of costs or practitioner remuneration order.</li>
<li><strong>By fixed or flat fee</strong>: charging an agreed fee for the whole of the matter, for a stage or for a task.</li>
<li><strong>By conditional fee</strong>: where all or part of the fee is conditional on success or a specific outcome being achieved.</li>
</ul>
</td>
</tr>
<tr>
<td style="width:278px;height:29px;"><p style="text-align: center;"><strong>The positives</strong></p>
</td>
<td style="width:347px;height:29px;"><p style="text-align: center;"><strong>The negatives</strong></p>
</td>
</tr>
<tr>
<td style="width:278px;height:36px;">
<ul><li>The Costs Court is a centralised venue for dealing with all sorts of costs disputes.</li>
<li>Provides a uniform approach to claiming costs &ndash; recoverable pursuant to scales of costs and assessed by one of four decision makers (an Associate Justice, a Judicial Registrar or one of two Costs Registrars).</li>
<li>Except for timed attendances, including telephone attendances or attendances to instruct at court, costs are not assessed based on time spent.</li>
<li>Rates allowed under the scale are deemed to be reasonable in all circumstances, providing certainty.<br />
Scale rates are periodically reviewed and indexed, so they keep pace with inflation.</li>
<li>It is arguable that time billing protects and facilitates inefficient or incompetent practices, whereas a scale of costs allocates a set cost to each discrete item of work.</li>
<li>The scale provides certainty, even where a practitioner hasn&rsquo;t been as meticulous in recording time as they should have been.</li>
<li>Scales of costs avoid any inflation in the amount of time spent and claimed.</li>
<li>The various Victorian scales of costs reflect a focus on providing value to the client rather than the billable hour.</li>
<li>Some Costs Court rulings are published, providing more transparency and consistency in decisions.</li>
</ul>
</td>
<td style="width:347px;height:36px;">
<ul><li>The scales provide just one rate for everyone, and don&rsquo;t consider experience or expertise.</li>
<li>The rigidity of the scale does not allow a practice to use a wide range of fee earners with various levels of experience, in the same way that a costs agreement would. For example, the Supreme Court scale has just three basic rates (the highest rate being $393 an hour and the lowest $228 an hour).</li>
<li>In complex or time-consuming matters, the scale can reduce a firm&rsquo;s profitability.</li>
<li>Efficient and ethical practitioners can be penalised by strict scale rates.</li>
<li>When a costs agreement is based on high hourly rates (as might be the case, for say, a specialist lawyer with city offices), the gap between solicitor/client costs and party/party costs can be significant.</li>
<li>Costs Court decisions are generally unavailable to non-parties.</li>
</ul>
<p>&nbsp;</p>
</td>
</tr>
</tbody>
</table>
<p>&nbsp;</p>
<p><strong>And finally&hellip;</strong></p>
<p>As you can see, each jurisdiction has its advantages and disadvantages. However, the one way to make sure you always capitalise on the strengths and avoid the pitfalls of the costs regime you&rsquo;re working with, is to trust your costs to professionals like Blackstone.</p>
<p>&nbsp;</p>
<p><strong>Romaine Abraham </strong>is a lawyer at <a href="http://www.bstone.com.au/">Blackstone Legal Costing</a>. With experience across New South Wales and Victoria, Romaine is skilled in obtaining the best commercial results for clients.<br />
<strong>​​​​</strong></p>
<p><strong>Dipal<img alt="" src="/sb_cache/blog/id/483/f/Dipal Prasad - Blackstone Legal Costing.jpg" style="margin-left: 10px; margin-right: 10px; float: left; width: 100px; height: 114px;" /> &nbsp;Prasad</strong> is an associate at <a href="http://www.bstone.com.au/">Blackstone Legal Costing</a>, one of the largest&nbsp;legal costing firms in Australia with experienced&nbsp;costs&nbsp;lawyers and&nbsp;consultants in Sydney, Melbourne and&nbsp;Brisbane. Dipal is committed to maximising costs recovery for successful parties in litigation and minimising costs liability for unsuccessful parties.<br />
&nbsp;</p>
<p>For more information about Blackstone Legal Costing or to subscribe to their monthly blog, please visit: <a href="http://www.bstone.com.au/notice-of-objection-news/" target="_blank">http://www.bstone.com.au/notice-of-objection-news/</a>.</p>
<p><em>This is the second article in a series of three. Their next article will discuss psychological pain syndromes.</em></p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/how-does-the-costs-process-work-in-your-statehttps://www.lawyersalliance.com.au/opinion/how-does-the-costs-process-work-in-your-stateThu, 11 Jan 2018 00:00:00 +1100Mental health and the reasonable person test<p><span style="font-size:14px;">Our society, our judicial system and the law has historically had some difficulty understanding and responding appropriately to psychiatric injuries. One of the key reasons for this, and there are many, is that to provide justice and fairness, legal systems require evidence to prove allegations. The trouble is, psychiatric injuries cannot be seen. There is no scan, blood analysis or other test that can provide objective proof of troubles of the mind.</span></p>
<p><span style="font-size:14px;">Legal provisions, such as the extension of a limitation period or mitigation of loss, so often rely on the reasonable person test. The problem is, it is sometimes impossible to act &lsquo;reasonably&rsquo;, to view events with clarity and to be diligent, when suffering from a psychiatric injury.</span></p>
<p><span style="font-size:14px;">The District Court of Queensland has offered some hope for plaintiffs suffering from a psychiatric injury, and His Honour Justice Durward SC&rsquo;s position was maintained Holmes CJ and Gotterson and&nbsp;Flanagan JJ in the Court of Appeal in the matter of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCA/2017/232.html" target="_blank"><em>AAI Limited t/as Suncorp Insurance v Birch </em>[2017] QCA 232</a>.</span></p>
<p><span style="font-size:14px;">Ms Birch witnessed and rendered assistance to occupants in a fatal motor vehicle accident on 3 February 2012. She saw her general practitioner who, on 3 March 2012, suggested that she could be experiencing post-traumatic stress disorder (PTSD). She was prescribed anti-depressant medication and referred for counselling. Ms Birch underwent eight sessions with a mental health nurse and continued to take medication until May 2014. Ms Birch continued to work full time as a clinical audiometrist, including travelling regularly. She experienced symptoms of travel phobia; however, they eased over time.</span></p>
<p><span style="font-size:14px;">Ms Birch began experiencing difficulties with her employer in 2014. At the start of 2015, her required travel increased significantly. On 27 June 2015, Ms Birch returned to her general practitioner reporting psychiatric difficulties. She was referred to a psychologist and advised to take time off work.</span></p>
<p><span style="font-size:14px;">On either 16 or 23 July 2015, Ms Birch was advised by her psychologist that she was suffering symptoms that were an ongoing manifestation of her PTSD from the 2012 motor vehicle accident. Ms Birch was previously unaware that she had an ongoing psychiatric injury as a result of the motor vehicle accident, or at all. On 9 August 2015, Ms Birch resigned from her employment due to the amount of driving required in her duties and her ongoing travel phobia.</span></p>
<p><span style="font-size:14px;">On 17 June 2016, a claim for nervous shock injuries arising from the motor vehicle accident was filed in District Court of Queensland. In order to proceed with her claim, filed four years and four months after the accident, Ms Birch required an extension of the usual three-year limitation period under <a href="https://www.legislation.qld.gov.au/view/html/inforce/current/act-1974-075#sec.31" target="_blank">s31 of the <em>Limitation of Actions Act</em> 1974 (Qld)</a>. This section required Ms Birch to establish three things:</span></p>
<ol><li>That a material fact of a decisive character relating to the right of action was not within Ms Birch&rsquo;s means of knowledge until after 17 June 2015.</li>
<li>That there exists evidence to establish right of action.</li>
<li><span style="font-size:14px;">That there is no prejudice to the defendant in granting an extension of the limitation period.</span></li>
</ol>
<p><span style="font-size:14px;">Suncorp took no issue with points 2 or 3, and thus the initial application and the appeal were concerned with the question of material fact. As mentioned above, questions of extension of the limitation involve the application of a &lsquo;reasonable person&rsquo; test, being at what point would a reasonable person in Ms Birch&rsquo;s position have taken appropriate advice about her injury and legal rights.</span></p>
<p><span style="font-size:14px;">In this case, the Court was &lsquo;satisfied that it [was] only over time and with gradual adverse progression of her symptoms that [Ms Birch] came to the realisation that she could no longer cope with her employment. I am satisfied that having regard to her capacity to cope at work for the time after the motor vehicle accident, the medical advice she received and her personal and work circumstances, [Ms Birch] took all reasonable steps to find out the material facts.&rsquo;</span></p>
<p><span style="font-size:14px;">Most significantly for sufferers of psychiatric injuries, the Court accepted as reasonable that &lsquo;in the period during which a claim could be brought, [Ms Birch] was preoccupied with workplace issues and other adverse health conditions&rsquo; and upheld the District Court&rsquo;s extension of the limitation period.</span></p>
<p><span style="font-size:14px;">Psychiatric injuries can be difficult to recognise. Symptoms will often be attributed to tiredness, a normal response to conflict or even stress. It can also be difficult to determine the cause of injuries, with sufferers often experiencing a rollercoaster of symptoms, lapses, delayed onset and exacerbations of their underlying injury. For Ms Birch, the Court has recognised all of these difficulties and the impact this lack of clarity can have on a sufferer pursuing appropriate advice. This decision offers some compassion, understanding and support to people experiencing psychiatric injuries and the plethora of troubles that go along with them.</span></p>
<p><span style="font-size:14px;"><img alt="" src="/sb_cache/blog/id/446/f/Michelle Wright - Shine Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 107px; height: 100px;" />Maurice Blackburn Lawyer <strong>Michelle Wright </strong>has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women&rsquo;s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advices.&nbsp;</span></p>
<p><span style="font-size:14px;">This article was originally published on Michelle&#39;s blog,</span><em><span style="font-size:14px;"> <a href="https://picasenote.wordpress.com/2017/10/01/mental-health-and-psychiatric-injuries/" target="_blank">P.I. Case Note</a>.</span></em></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="http://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.</strong></a></p>
https://www.lawyersalliance.com.au/opinion/mental-health-and-the-reasonable-person-testhttps://www.lawyersalliance.com.au/opinion/mental-health-and-the-reasonable-person-testThu, 30 Nov 2017 00:00:00 +1100Personal Injuries Proceedings Act 2002 (Qld) health claims, s9 or s9A?<p><span style="font-size:14px;">As a junior practitioner handling medical claims in Queensland, I have noticed that confusion can arise as to the application of ss9 and 9A of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/pipa2002314/" target="_blank"><em>Personal Injuries Proceedings Act</em> 2002 (Qld)</a> (PIPA). Section 9A offers procedural direction for medical negligence matters, while s9 is to be used for all other eligible claims.</span></p>
<p><span style="font-size:14px;">The confusion arises from the ambiguous wording found within s9A, and the lack of clearly defined terms in PIPA. It would appear that some practitioners believe that s9A applies to all claims regarding health professionals. However, this is not entirely correct.&nbsp;</span></p>
<p><span style="font-size:14px;">Section 9A(1) states:&nbsp;<br />
&nbsp;&nbsp;&lsquo;This section applies to a claim based on a<strong> <em>medical incident</em></strong><em> </em>happening on or after the commencement of this section that is alleged to have given rise to personal injury.&rsquo; (emphasis added)</span></p>
<p><span style="font-size:14px;">Section 9A(14) provides a definition of &lsquo;medical incident&rsquo;:<br />
&nbsp;&nbsp;&lsquo;medical incident means an accident, or other act, omission or circumstance involving a <em><strong>doctor </strong></em>happening during the provision of medical services.&rsquo; (emphasis added)</span></p>
<p><span style="font-size:14px;">The key term is the word &lsquo;doctor&rsquo;. &lsquo;Doctor&rsquo; is not defined in the PIPA. Through a web of legislation which ends with the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/hprnla2009428/" target="_blank"><em>Health Practitioner Regulation National Law Act </em>2009 (Cth)</a>&nbsp;(the National Law), &lsquo;doctor&rsquo; is consistently defined as &lsquo;medical practitioner&rsquo;. Section 9A therefore has a strict application and applies only to medical practitioners or treatment involving a medical practitioner; for example, where a claimant has been treated at hospital.<br />
&nbsp;<br />
<strong>SO WHAT ABOUT ALLIED HEALTH PROFESSIONALS? DOES s9A APPLY TO THEM?&nbsp;</strong></span></p>
<p><span style="font-size:14px;">In my opinion, s9A does not apply. Section 9 would apply to health professionals as they are not considered &lsquo;medical practitioners&rsquo;. Accordingly, the appropriate way to commence a claim against allied health professionals would be to serve a Notice of Claim Part 1 required under s9 rather than the initial notice required under s9A. However, there is further confusion in practice about which of the approved forms would apply in this situation. Notice of Claim Form 1 states that it is to be used for &lsquo;non-health care claims&rsquo; with Notice of Claim Form 2 to be used for &lsquo;health care claims&rsquo;.&nbsp;</span></p>
<p><span style="font-size:14px;">PIPA defines &lsquo;health care&rsquo; as:<br />
&nbsp;&nbsp;&lsquo;any care, treatment, advice, service or goods provided in relation to the physical or mental health of a person&rsquo;;&nbsp;</span></p>
<p><span style="font-size:14px;">and &lsquo;health care claim&rsquo; as:<br />
&nbsp; &lsquo;a claim against a health care provider in relation to personal injury caused entirely or partly by the fault of the <em><strong>health care provider</strong></em> in providing health care&rsquo; [1].</span><span style="font-size:14px;">&nbsp;(emphasis added)</span></p>
<p><span style="font-size:14px;">&lsquo;Provider&rsquo; is defined as an individual, other than a student, who is registered under the National Law to practice as a health profession [2].</span><span style="font-size:14px;">&nbsp;The National Law confirms that &lsquo;<a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/hprnla2009428/sch1.html" target="_blank">health profession</a> &rsquo; includes, for example, a physiotherapist, a chiropractor, or a dentist.</span></p>
<p><span style="font-size:14px;">Taking into account this interpretation, it is my view that in order to commence a claim against an allied health professional, a Notice of Claim Form 2 (health care claim) is required to be used and served under s9. However, having provided this to respondents&rsquo; lawyers on occasions in the past, their response was that the Notice of Claim Form 2 was non-compliant as an initial notice had not been served prior to the service of the notice of claim.</span></p>
<p><strong><span style="font-size:14px;">WHY DOES ALL THIS MATTER?&nbsp;</span></strong></p>
<p><span style="font-size:14px;">It comes down to costs and the time it takes to complete the pre-court process.&nbsp;</span></p>
<p><span style="font-size:14px;">Section 9A allows the claimant up to 12 months to investigate the allegations being made. It also requires that the claimant obtain a specialist medical report confirming liability and causation before the notice of claim can be served. The respondent is not obligated to investigate the allegations until such time as the notice of claim is served, which reduces the costs to the respondent in defending the allegations. Under this section, the claimant&rsquo;s legal costs are increased.&nbsp;</span></p>
<p><span style="font-size:14px;">Section 9, on the other hand, allows the claimant to serve the notice of claim without a specialist report. The respondent is required to commence their investigations upon service. The claimant still needs to establish that there is a causal link between the incident and the injury, but this can be done throughout the course of the pre-court process rather than prior to the service of the notice of claim [3]. It is more beneficial for a claimant to proceed under this section than s9A, given the length of time required to complete the pre-court process and therefore the cost savings.&nbsp;<br />
&nbsp;<br />
As a result of the delays which may be experienced at the outset of the claim, arguing over which section applies, unnecessary costs may be incurred by both parties. Perhaps PIPA requires further amendment to clear up the confusion and enable greater uniformity within practice?</span></p>
<p>&nbsp;</p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/487/f/Joanne Baker - Slater+Gordon pic - cropped.jpg" style="margin: 3px 10px; float: left; width: 200px; height: 186px; border-width: 0px; border-style: solid;" />Joanne Baker</strong> graduated from the University of Southern Queensland in 2016 and recently completed her Bachelor of Laws (Honours). Her legal career started as an office junior in a small law firm in her home town in England. Over the next 20 years, she worked her way up through administration roles, from secretary to law clerk in various areas of law including criminal, property, succession and personal injuries. She is currently a first-year lawyer in the Medical Negligence team at <a href="https://www.slatergordon.com.au/" target="_blank">Slater + Gordon Lawyers</a>. Outside of work, Joanne has a passion for health and fitness and has two children who keep her on her toes.</span></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<hr /><p>1.&nbsp;PIPA, s8.<br />
2.&nbsp;<em>Hospital and Health Boards Act 2011 </em>(Qld), s14.<em>Hospital and Health Boards Act 2011 </em>(Qld), s14.<br />
3.&nbsp;PIPA, s22.</p>
https://www.lawyersalliance.com.au/opinion/personal-injuries-proceedings-act-2002-qld-health-claims-s9-or-s9ahttps://www.lawyersalliance.com.au/opinion/personal-injuries-proceedings-act-2002-qld-health-claims-s9-or-s9aThu, 23 Nov 2017 00:00:00 +1100How are costs calculated in your state? <p><strong><span style="font-size:18px;">Our guide to applying for costs in NSW, Queensland and Victoria</span></strong></p>
<p>In each jurisdiction that we practice in &ndash; NSW, Queensland and Victoria &ndash; party/party and solicitor/client costs are applied differently. Unless you are a costs lawyer immersed in costs law day in, day out, it can be confusing to know how costs will be calculated, or even to find the information you need.</p>
<p>To help you out, we have created this short guide that explains everything you need to know about how costs are calculated in NSW, Queensland and Victoria. In future articles, we will focus on the process of costs assessment and the powers of costs assessors in each of the jurisdictions, with a specific focus on the advantages and disadvantages of each of the systems.</p>
<table border="1" cellpadding="0" cellspacing="0" class="contentTable" width="0">
<tbody>
<tr>
<td colspan="2" style="width:634px;height:46px;"><p><span style="font-size:18px;"><strong>New South Wales</strong></span></p>
</td>
</tr>
<tr>
<td colspan="2" style="width:634px;height:27px;"><p><strong>Time-costing</strong></p>
<p>In NSW, both party/party costs and solicitor/client costs are calculated based on hourly rates. This is usually done pursuant to the costs agreement between legal adviser and client. However, if the costs agreement is set aside or the hourly rate in that agreement is deemed unreasonable, fair and reasonable rates will apply.</p>
<p><strong>Party/party costs</strong></p>
<p>The test for assessing costs on an ordered or party/party basis is set out in <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpulaa2014406/s76.html">s76</a> of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/lpulaa2014406/"><em>Legal Profession Uniform Law Application Act </em>2014</a><a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/lpulaa2014406/"> (NSW)</a>.</p>
<p>In conducting an assessment of ordered costs, the costs assessor must determine what a fair and reasonable amount of costs is for the work concerned. To do this, they may examine the costs agreement. However, the costs agreement will not be conclusive when it comes to determining what is fair and reasonable in the circumstances.</p>
<p><strong>Solicitor/client costs </strong></p>
<p>The test for assessing whether solicitor/client costs are fair and reasonable is set out in <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpul333/s199.html">s199</a> of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/lpul333/"><em>Legal Profession Uniform Law </em>(NSW)</a>.</p>
<p>Generally, the costs assessor must determine:</p>
<ul><li>whether or not a valid costs agreement exists;&nbsp;</li>
<li>whether legal costs are fair and reasonable; and</li>
<li>to the extent they are not fair and reasonable, the amount of legal costs that are to be payable, if any.</li>
</ul>
<p><a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpul333/s172.html">Section 172</a>, in particular, specifies that costs are to be both proportionately and reasonably incurred, and proportionate and reasonable in their amount.<br />
&nbsp;</p>
</td>
</tr>
<tr>
<td style="width:278px;height:29px;"><p style="text-align: center;"><br />
<strong>The positives</strong></p>
</td>
<td style="width:356px;height:29px;"><p style="text-align: center;"><br />
<strong>The negatives</strong></p>
</td>
</tr>
<tr>
<td style="width:278px;height:36px;">
<ul><li>Time-costing allows hourly rates and lets a practitioner charge depending on their experience and skill.</li>
<li>The fair and reasonable test is applied to all costs disputes in NSW, which makes it easier to convert a solicitor/client bill of costs to a party/party bill of costs than is the case in other jurisdictions.</li>
<li>The gap between costs recoverable on a party/party basis and a solicitor/client basis is generally not as wide as in other jurisdictions.</li>
</ul>
<p>&nbsp;</p>
</td>
<td style="width:356px;height:36px;">
<ul><li>No uplift is allowed (except in solicitor/client disputes where the costs agreement specifically permits an uplift).</li>
<li>There always needs to be a careful balance between brevity and sufficient information in the bill of costs to allow a client to understand and appreciate the fees charged (more so than in jurisdictions where a scale applies).</li>
<li>It can be difficult to estimate other parties&#39; costs because different hourly rates often apply. This is not the case when a uniform scale of costs is used.</li>
<li>Being able to recover full costs means always accurately and promptly recording all time, either during or soon after attendance.</li>
</ul>
</td>
</tr>
</tbody>
</table>
<table border="1" cellpadding="0" cellspacing="0" class="contentTable" width="0">
<tbody>
<tr>
<td colspan="2" style="width:640px;height:46px;"><p><br />
<span style="font-size:18px;"><strong>Queensland</strong></span></p>
</td>
</tr>
<tr>
<td colspan="2" style="width:640px;height:27px;"><p><strong>Standard costs (previously &lsquo;party and party costs&rsquo;)</strong></p>
<p>In Queensland, standard costs are dealt with in Chapter 17A of the <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_reg/ucpr1999305/"><em>Uniform Civil Procedure Rules </em>1999</a><a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_reg/ucpr1999305/"> (Qld)</a>. The Schedules to the Act also include:</p>
<ul><li>Scale of costs for the <a href="http://www.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/sch1.html">Supreme Court</a>;</li>
<li>Scale of costs for the <a href="http://www.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/sch2.html">District Court</a>;</li>
<li>Scale of costs for the <a href="http://www.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/sch3.html">Magistrates Courts</a>.</li>
</ul>
<p>The test for assessing costs on a standard basis is set out in <a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_reg/ucpr1999305/s702.html">s702</a> of the Rules. It says:</p>
<p>&lsquo;When assessing costs on the standard basis, a costs assessor must allow all costs <strong>necessary or proper</strong> for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.&rsquo; (emphasis added)</p>
<p><strong>Solicitor/client Costs </strong></p>
<p>For solicitor/client costs, the relevant provisions can be found in Part 3.4 of the <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/lpa2007179/"><em>Legal Profession Act </em>2007</a><a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/lpa2007179/"> (Qld)</a> (LPA).</p>
<p>In Queensland, costs can be claimed pursuant to any costs agreement with the client. If there is no costs agreement, then the relevant scale of costs will apply. If there is neither, then costs apply &lsquo;according to <strong>the fair and reasonable </strong>value of the legal services provided&rsquo; (<a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/lpa2007179/s319.html">s319</a> LPA) (emphasis added).</p>
<p><a href="http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/lpa2007179/s341.html">Section 341</a> of the LPA says that, when assessing what is fair and reasonable, the costs assessor must consider:</p>
<p>(a) whether or not it was reasonable to carry out the work to which the legal costs relate; and</p>
<p>(b) whether or not the work was carried out in a reasonable way; and</p>
<p>(c) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that s340 applies to any disputed costs.<br />
&nbsp;</p>
</td>
</tr>
<tr>
<td style="width:278px;height:29px;"><p style="text-align: center;"><br />
<strong>The positives</strong></p>
</td>
<td style="width:362px;height:29px;"><p style="text-align: center;"><br />
<strong>The negatives</strong></p>
</td>
</tr>
<tr>
<td style="width:278px;height:36px;">
<ul><li>Queensland allows for a care and consideration uplift (in percentage), which covers some attendances not recoverable pursuant to the prescribed scale of costs. The highest uplift that can be claimed is 30%, unless the case is extremely complex.</li>
</ul>
</td>
<td style="width:362px;height:36px;">
<ul><li>Queensland&rsquo;s &lsquo;necessary and proper&rsquo; test is more stringent than the &lsquo;reasonable&rsquo; or &lsquo;fair and reasonable&rsquo; test that applies in other jurisdictions. That means only limited costs are recoverable on a standard basis, relative to other jurisdictions.</li>
<li>Depending on the terms of the costs agreement, the gap between solicitor/client and party/party costs is usually as high as 60%, meaning only around 40% of solicitor/client costs are often recoverable on a standard basis.</li>
<li>The relevant scale of costs has not been updated since 2013 and is well out of date.</li>
</ul>
</td>
</tr>
</tbody>
</table>
<table border="1" cellpadding="0" cellspacing="0" class="contentTable" width="0">
<tbody>
<tr>
<td colspan="2" style="width:624px;height:46px;"><p><br />
<span style="font-size:18px;"><strong>Victoria</strong></span></p>
</td>
</tr>
<tr>
<td colspan="2" style="width:624px;height:27px;"><p><strong>Scales of costs </strong></p>
<p>In Victoria, you will find each of the applicable scales on the <a href="https://www.liv.asn.au/Professional-Practice/LIV-Cost-Lawyers/Scales-of-Costs">Law Institute of Victoria website</a>.</p>
<p><strong>Party/party costs</strong></p>
<p>Which scale applies for party/party costs depends on which court you are appearing in:</p>
<ul><li>For Supreme Court matters, you will find the scale of costs at Appendix A of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_reg/sccpr2015n103o2015514/index.html"><em>Supreme Court (General Civil Procedure) Rules </em>2015</a>.</li>
<li>For the County Court, costs are set out in the <a href="http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/b05145073fa2a882ca256da4001bc4e7/A2BC44533546AAA1CA257D64001B0444/$FILE/14-150sra%20authorised.pdf"><em>County Court (Chapter 1 Costs Amendment) Rules</em></a> <a href="http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/b05145073fa2a882ca256da4001bc4e7/A2BC44533546AAA1CA257D64001B0444/$FILE/14-150sra%20authorised.pdf">2014</a>. From 6 October 2014, they are assessed at 80%&nbsp;of the Supreme Court scale.</li>
<li>For Magistrates&rsquo; Court matters, you will find the scale of costs at Appendix A of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_reg/mcgcpr2010464/"><em>Magistrates&rsquo; Court General Civil Procedure Rules</em></a> <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_reg/mcgcpr2010464/">2010</a>.</li>
<li>For Victorian and Civil Administrative Tribunal matters, costs are generally awarded on the County Court scale.</li>
</ul>
<p><strong>Solicitor/client costs</strong></p>
<p>In Victoria, solicitor/client costs are usually claimed pursuant to the costs agreement a solicitor has with their client. The most common methods of charging legal work include:</p>
<ul><li><strong>According to time</strong>: charging the actual time spent on a particular task and ultimately the matter. Rates will vary according to the size and location of the practice, and the experience of the practitioner providing the service.</li>
<li><strong>By reference to scale:</strong>&nbsp; to the relevant scale of costs or Practitioner Remuneration Order.</li>
<li><strong>By fixed or flat fee: </strong>charging an agreed fee for the whole of the matter, for a stage or for a task.</li>
<li><strong>By conditional fee</strong>: where all or part of the fee is conditional on success or a specific outcome being achieved. The rate for charging on conditional agreements can be calculated in accordance with any of the three methods above.<br />
&nbsp;</li>
</ul>
</td>
</tr>
<tr>
<td style="width:278px;height:29px;"><p style="text-align: center;"><strong>The positives</strong></p>
</td>
<td style="width:347px;height:29px;"><p style="text-align: center;"><strong>The negatives</strong></p>
</td>
</tr>
<tr>
<td style="width:278px;height:36px;">
<ul><li>Reliance on scale provides a uniform approach to claiming costs.</li>
<li>With the exception of timed attendances, including telephone attendances or attendances to instruct at court, for example, costs are not assessed based on time spent.</li>
<li>Rates allowed under the scale are deemed to be reasonable, providing certainty.</li>
<li>Scale rates are periodically reviewed and indexed, so they keep pace with inflation.</li>
<li>It is arguable that time-billing protects and facilitates inefficient or incompetent practices, whereas a scale of costs allocates a set cost to each discrete item of work.</li>
<li>The scale provides certainty, even where a practitioner has not been as meticulous in recording time as they should have been.</li>
<li>Scales of costs avoid any inflation in the amount of time spent and claimed.</li>
<li>The various Victorian Scales of Costs reflect a focus on providing value to the client rather than the billable hour.</li>
<li>Efficient and ethical practitioners can be rewarded by strictly applied scale rates.</li>
</ul>
</td>
<td style="width:347px;height:36px;">
<ul><li>The scales provide just one rate for all legal practitioners, and do not take into account experience or expertise.</li>
<li>The rigidity of the scale does not allow a practice to use a wide range of fee-earners with various levels of experience, in the same way that a costs agreement would. For example, the Supreme Court scale has just three basic rates (the highest rate being $393 and the lowest $228).</li>
<li>In complex or time-consuming matters, the scale can reduce a firm&rsquo;s profitability.</li>
<li>When a costs agreement is based on high hourly rates (as might be the case for, say, a specialist lawyer with city offices), the gap between solicitor/client costs and party/party costs can be significant.</li>
</ul>
<p>&nbsp;</p>
</td>
</tr>
</tbody>
</table>
<p>&nbsp;</p>
<p><strong>And finally&hellip;</strong></p>
<p>As you can see, each jurisdiction has its advantages and disadvantages. However, the one way to make sure you always capitalise on the strengths and avoid the pitfalls of the costs regime you&rsquo;re working with, is to trust your costs to professionals like Blackstone.</p>
<p>&nbsp;</p>
<p><strong>Romaine Abraham </strong>is a lawyer at <a href="http://www.bstone.com.au/">Blackstone Legal Costing</a>. With experience across New South Wales and Victoria, Romaine is skilled in obtaining the best commercial results for clients.<br />
<strong>​​​​</strong></p>
<p><strong>Dipal<img alt="" src="/sb_cache/blog/id/483/f/Dipal Prasad - Blackstone Legal Costing.jpg" style="margin-left: 10px; margin-right: 10px; float: left; width: 100px; height: 114px;" /> &nbsp;Prasad</strong> is an associate at <a href="http://www.bstone.com.au/">Blackstone Legal Costing</a>, one of the largest&nbsp;legal costing firms in Australia with experienced&nbsp;costs&nbsp;lawyers and&nbsp;consultants in Sydney, Melbourne and&nbsp;Brisbane. Dipal is committed to maximising costs recovery for successful parties in litigation and minimising costs liability for unsuccessful parties.<br />
&nbsp;</p>
<p>For more information about Blackstone Legal Costing or to subscribe to their monthly blog, please visit: <a href="http://www.bstone.com.au/notice-of-objection-news/" target="_blank">http://www.bstone.com.au/notice-of-objection-news/</a>.</p>
<p><em><span style="font-size:10px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/how-are-costs-calculated-in-your-statehttps://www.lawyersalliance.com.au/opinion/how-are-costs-calculated-in-your-stateThu, 16 Nov 2017 00:00:00 +1100Costs disclosure before settlement: a nightmare with a dream solution<p><span style="font-size:14px;">Too many lawyers wrongly believe the time to disclose their professional fees occurs near an engagement&rsquo;s beginning &ndash; and may then be forgotten. And too many lawyers wrongly believe clients are interested in estoppel, foreseeability and other esoteric legal concepts, when they actually care about two things only: time and money. Let&rsquo;s focus on money.</span></p>
<p><span style="font-size:14px;">In 2016 and again earlier this year, the High Court was called upon to consider the professional negligence of barristers and solicitors when advising on settlement of litigation. In the 2016 decision of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2016/16.html" target="_blank"><em>Attwells &amp; Anor v Jackson Lalic Lawyers Pty Ltd </em>[2016] HCA 16</a>, and again in the 2017 decision of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/13.html" target="_blank"><em>Kendirjian v Lepore &amp; Anor</em> [2017] HCA 13</a>, the court held that advocates&rsquo; immunity from suit did not extend to the advice given about a settlement offer because the advice did not affect the judicial determination of the case. In other words, lawyers can be sued by their unhappy clients for legal advice hastily given during morning tea in response to settlement negotiations during trial.</span></p>
<p><span style="font-size:14px;">These High Court decisions should surprise no one. Experienced solicitors and counsel all know the importance of documenting advice given to clients and getting their client to sign the documents. Even before these High Court cases, professional conduct committees regularly considered disciplinary complaints from aggrieved clients about settling cases for less than they were worth, and the allegedly nefarious role played by their legal advisers.</span></p>
<p><span style="font-size:14px;">Since 1 July 2015, about 90% of Australian lawyers &ndash; those in New South Wales and Victoria &ndash; are regulated by the <em>Legal Profession Uniform Law</em> (LPUL) and associated enabling legislation. The LPUL legislation includes a web of statutes, rules and regulations that make identification of professional obligations difficult.&nbsp;</span></p>
<p><span style="font-size:14px;">The LPUL requires costs disclosure before settlement: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpul333/s177.html" target="_blank">s177 LPUL</a>. Section 177, properly construed, means clients must know how much money will be put in their pocket, or taken from it, if the matter settles.</span></p>
<p><span style="font-size:14px;">Litigation proceeding under old legislation not resolved by 1 July 2015 (when the LPUL started) contains similar obligations: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/repealed_act/lpa2004179/s313.html" target="_blank">s313 <em>Legal Profession Act</em> 2004 (NSW)</a> and <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/num_act/lpa200499o2004225/s3.4.13.html" target="_blank">s3.4.13 <em>Legal Profession Act</em> 2004 (Vic)</a>.</span></p>
<p><span style="font-size:14px;">Lawyers subject to LPUL local regulations in New South Wales are subject to another obligation which reinforces <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/lpul333/s177.html" target="_blank">s177</a> and expands the advice which must be given when a client receives an offer of compromise on a claim for personal injury damages. Lawyers must disclose certain matters and convey certain opinions: <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_reg/lpular2015497/s29.html" target="_blank">cl29 <em>Legal Profession Uniform Law Application Regulation </em>2015 (NSW)</a>.</span></p>
<p><span style="font-size:14px;">&lsquo;Disclosure&rsquo; is a term of art which includes the requirement of writing. Failure to disclose occurs when lawyers fail to meet all statutory requirements. Failure to disclose has four consequences for lawyers: (1) your costs agreement is void; (2) the client does not have to pay your legal costs until they have been assessed at your cost; (3) you must not commence or maintain proceedings to recover any of the legal costs until they have been assessed at your cost; and (4) your failure may constitute unsatisfactory professional conduct or professional misconduct &ndash; and in the case of solicitors, by any principal of the law practice. I previously wrote about how I can represent you and ameliorate these nasty consequences, but you have only days to act.&nbsp;</span></p>
<p><span style="font-size:14px;">Before and since the introduction of LPUL, I made and keep making the observations set out above. In lawyer and client disputes, the extent of overlap between breach of duty, unsatisfactory professional conduct and a failure to comply with legislation concerning costs and fees is remarkable. I have observed this terrible trifecta so often I decided there had to be a better way for lawyers to discharge their obligations when negotiating a settlement of litigation. Then, a brief fortuitously arrived in my inbox: to advise on settlement of an appeal on damages, and a cross-appeal on costs, after the trial judge failed to order indemnity costs of trial notwithstanding the successful plaintiff obtained judgment greater than his offer of compromise. The advice was required after receipt of an offer of compromise from the losing side after they commenced the appeal but before it had been heard. The calculations were a nightmare: each side&rsquo;s costs at trial, on appeal, on the ordinary basis, and on the indemnity basis had to be reconciled with a likelihood (to be calculated) of damages being unchanged or reduced by some amount.</span></p>
<p><span style="font-size:14px;">To formulate an opinion, I initially considered applying the Denuto principle, made famous by the fictional solicitor Denis Denuto in the motion picture <em>The Castle</em> when addressing the High Court: &ldquo;In summing up, it&rsquo;s the constitution, it&rsquo;s Mabo, it&rsquo;s justice, it&rsquo;s law, it&rsquo;s the vibe and aah no that&rsquo;s it, it&rsquo;s the vibe. I rest my case.&rdquo; But, in this case, I was briefed without enough vibe. So, equipped with a pre-law background as an industrial chemist specialising in quantum mechanics, a person comfortable with mathematics and technology, and someone who recognised human imperfection was universal (especially my own), I created the costs disclosure settlement computer.</span></p>
<p><span style="font-size:14px;">My costs disclosure settlement computer is an intuitive electronic spreadsheet designed to make identification of, and compliance with, professional obligations easy. It automates just about everything dull and mathematical. Lawyers must know only two things: (1) their own costs, and (2) their own experience of &lsquo;costs assessment&rsquo;, also known as &lsquo;taxation of costs&rsquo;. The consequences of incorrect or non-disclosure of costs are significant. My costs disclosure settlement tool can simplify the task of disclosure and help you to comply with the confusing laws surrounding the obligation.&nbsp;</span></p>
<p><span style="font-size:14px;"><a href="https://tinyurl.com/costs-disclosure" target="_blank"><strong>Download</strong></a> a free copy for your own use. &nbsp;</span></p>
<p><span style="font-size:14px;">Please read instructions for using my costs disclosure settlement computer <a href="/documents/item/1003" target="_blank"><strong>here</strong></a>.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/481/f/Philippe Doyle Gray - 8 Wentworth.jpeg" style="margin: 3px 10px; float: left; width: 150px; height: 150px;" />Philippe Doyle Gray</strong> is a barrister at 8 Wentworth Chambers in Sydney. He advises and represents barristers, solicitors, and clients in disputes over legal fees as one part of his civil litigation practice in which allegations are made of criminality, fraud, or serious misconduct, including professional negligence and professional discipline. He was the first lawyer practising outside North America to be appointed a councillor of the American Bar Association&rsquo;s Law Practice Division, which is charged with responsibility for technology in the practice of law, a position he still holds. He is also the only Australian ever to teach at the Division&rsquo;s annual technology-in-law conference, TECHSHOW, held each March in Chicago. PHONE (02) 9232 3953 EMAIL <a href="mailto:Philippe@PhilippeDoyleGray.com?subject=Your%20article%20on%20the%20ALA%20website%2C%20re%20your%20costs%20disclosure%20settlement%20tool">Philippe@PhilippeDoyleGray.com</a>.&nbsp;</span></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="http://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/costs-disclosure-before-settlement-a-nightmare-with-a-dream-solutionhttps://www.lawyersalliance.com.au/opinion/costs-disclosure-before-settlement-a-nightmare-with-a-dream-solutionThu, 09 Nov 2017 00:00:00 +1100The Queensland state election and personal injury entitlements<p>Queensland Premier, Annastacia Palaszczuk, called for a state election to take place on 25 November 2017 &ndash; the announcement was made on 29 October. The last two state government elections have resulted in some of the biggest changes to personal injury law in Queensland since the introduction of the <em>Civil Liability Act</em> in 2001. What impact will this election have on the rights and entitlements of injured Queenslanders?</p>
<p>The stewardship of Campbell Newman and the Liberal National Party (LNP) in government in Queensland from March 2012 to January 2015 saw sweeping changes to Queensland legislation. Introduced under the guise of protecting Queensland and its future, these changes resulted in substantial job losses in the public sector, unprecedented and unvetted police powers against motorcycle riders, and the denial of common law rights to the majority of workers injured in the state. These moves were made against the recommendations emanating from multiple inquiries, and in the absence of proper consultation with stakeholders despite their significant impact on the lives of many Queenslanders.</p>
<p>An <a href="https://cabinet.qld.gov.au/documents/2013/Oct/Workers%20comp%20bill/Attachments/Report.pdf" target="_blank">Inquiry into the Operation of Queensland&rsquo;s Workers&rsquo; Compensation Scheme</a> was conducted by the Queensland Finance and Administration Committee and released in May 2013. Its recommendations from this inquiry included a recommendation against imposing thresholds on accessing common law rights as this would &lsquo;improperly remove rights from one group of citizens that are available to other citizens.&rsquo; The Committee further noted that &lsquo;imposing thresholds on [whole person impairment] would break the nexus between workers&rsquo; compensation and the ability of injured workers to perform their pre-injury employment.&rsquo;</p>
<p>Despite these recommendations, the Liberal government implemented such thresholds with the <em>Workers Compensation and Rehabilitation</em> and<em> Other Legislation Amendment Act </em>2013. This legislation effectively deprived 60% of injured workers the right to recover future lost wages and medical expenses incurred as a result of their injuries, passing the responsibility for these expenses to the federal social security systems. The restrictions were not based on whether or not a person could return to work, their levels of pain or the impact of their injuries on their everyday life, but rather on an arbitrary assessment of their injuries by a doctor who had seen the worker for a matter of minutes. The changes to the legislation also provided for the discrimination of previously injured workers in their future job-seeking efforts &nbsp;by allowing potential employers access to a candidates workers&rsquo; compensation claims history.</p>
<p>Annastacia Palaszczuk made an election promise in 2015 to put an end to much of the damage caused by the Newman government, and she has lived up to this promise throughout her time as Premier. She reversed the changes to the workers&rsquo; compensation system, back-dating the amendments passed in late-2015 to the date of her election in January of that year. She created a system to offer some relief for those injured workers affected by the previous amendments. She also closed the door on employers conducting claims history searches on potential employees.</p>
<p>The current Queensland government has recently introduced the National Disability Insurance Scheme (NDIS) into Queensland while ensuring the continuation of common law rights. With the framework for the NDIS established, it does not appear as though personal injury legislation is again on the agenda for the current election. The LNP has, however, indicated that it will re-introduce the widely criticised &lsquo;<a href="https://www.betterqueensland.org.au/criminal-gang-crack-down" target="_blank">bikie laws</a>&rsquo;, circumventing the rule of law and doing away with procedural fairness, as well as withdrawing from the Safe School Coalition, a program designed to protect our vulnerable youth.&nbsp;Conversely, the ALP&rsquo;s policies support safe schools and marriage equality and increase transparency and accountability of those in positions of power. The ALP policies also continue its ongoing work of supporting workers and families, supporting the maintenance of penalty rates and minimum wage, family-friendly rosters as well as codes of practice and reporting requirements with respect to workplace health and safety.</p>
<p>Tim Nicholls, state leader of the LNP, suggests that Annastacia Palaszczuk and the ALP are slow to act and soft with those actions. Such an approach, however, is necessary to ensure the state is governed in a fair and equitable manner. Consultation with stakeholders should occur before changes are made and any such changes should be the subject of ongoing review to determine their effectiveness. The alternative is the aggressive and discriminatory approach of the previous LNP government without cause or concern for the wellbeing of all stakeholders and the true implications of changes made. This is akin to a dictatorship rather than a democracy, and not something the Queensland public deserve.</p>
<p><img alt="" src="/sb_cache/blog/id/479/f/Michelle Wright - Shine Lawyers pic.jpg" style="float: left; width: 107px; height: 100px; border-width: 1px; border-style: solid; margin: 3px 10px;" />Solicitor <strong>Michelle Wright </strong>has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women&rsquo;s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advices.</p>
<p>This article was originally published on Michelle&#39;s blog, <a href="https://picasenote.wordpress.com/2017/11/01/the-queensland-state-election-and-personal-injury-entitlements/" target="_blank"><em>P.I. Case Note</em></a>.</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="http://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/the-queensland-state-election-and-personal-injury-entitlementshttps://www.lawyersalliance.com.au/opinion/the-queensland-state-election-and-personal-injury-entitlementsThu, 02 Nov 2017 00:00:00 +1100Calculating weekly payments of compensation<p>In Victoria, an injured employee is entitled to weekly payments of compensation when unable to work, but what figure is used to calculate the amount to be paid?</p>
<p>A recent case has looked at the figure to be used where a teacher didn&rsquo;t immediately stop work after being injured. The dispute concerned whether the amount to be used in calculations was the wage at the time that the worker first exhibited his symptoms, or when he actually lodged his claim?</p>
<p><strong>BACKGROUND</strong><br />
The plaintiff worked as a leading teacher at a P-12 College spread across a few campuses. As the e-learning co-ordinator, his role entailed curriculum and timetable planning, coaching other teachers in IT training and liaising with the IT technicians to implement any changes to the schools&rsquo; IT system. He commenced his role of leading teacher in around 2011.</p>
<p>Unfortunately, the teacher experienced a significant lack of co-operation and, it seemed at times, obstruction from the IT technicians in implementing changes and conducting regular meetings. This behaviour resulted in the teacher developing a stress-related condition.</p>
<p>In late 2011, he attended a GP to report his stress and was prescribed anti-anxiety medication. In November 2012, he lodged a formal complaint identifying his difficulties with the IT technicians and he also made an allegation of bullying.</p>
<p>Although school management advised that they had spoken with the IT technicians, the problems continued.</p>
<p>The situation became intolerable for the teacher and he resigned from the e-learning committee. However, he was required to continue contact with the IT technicians through his other roles. There continued to be problems on an ongoing basis.</p>
<p>In March 2013, the teacher lodged a second detailed complaint with the school. The local principal denied any bullying and removed him from the technical aspects of IT to minimise his stress.<br />
<br />
In May 2013, an informal mediation was arranged to liaise between the plaintiff and the IT technicians. Unfortunately, IT continued to be disruptive, which the plaintiff reported to the school.</p>
<p>In October 2013, the plaintiff sought a demotion to classroom teacher to reduce his stress levels and to avoid extensive contact with the IT technicians. The plaintiff continued as a leading teacher for the remainder of 2013 but swapped to a class-based role in 2014.</p>
<p>The plaintiff lodged a WorkCover claim in January 2015 for a &lsquo;course of employment claim&rsquo; while working as a classroom teacher on reduced hours. This claim was accepted and his weekly payments were initially paid according to his Pre-Injury Average Weekly Earnings (PIAWE) as a leading teacher.</p>
<p>The insurer, CGU, later reviewed this decision, in May 2015, and reduced his PIAWE accordingly.</p>
<p><strong>THE ISSUES</strong><br />
CGU nominated 6 March 2013 as the date of injury. It was submitted on behalf of the teacher that his PIAWE should be calculated from this date as it was when he was diagnosed as having an ongoing work-related stress condition.</p>
<p>The insurer alleged that the plaintiff stood down from his role as a leading teacher due to unrelated family issues rather than because of his work-related stress. It submitted that the PIAWE should be calculated according to the 52 weeks immediately prior to the date that the claim form was lodged and that his PIAWE should be calculated at his classroom teacher pay rate.</p>
<p><strong>THE DECISION</strong><br />
Magistrate Wright found in favour of the teacher for the following reasons:</p>
<ul><li>The medical evidence was not in dispute.</li>
<li>The plaintiff gave clear evidence of the difficulties experienced with the IT technicians and the impact that this had upon his mental health.</li>
<li>The plaintiff had made clear complaints of bullying to his manager.</li>
<li>A co-worker gave evidence that:
<ul><li>the plaintiff was stressed because of the IT team;</li>
<li>that his performance decreased because of this;</li>
<li>she was aware that the plaintiff felt unsupported by the principal; and</li>
<li>she also believed that he had been bullied by the IT staff.</li>
</ul>
</li>
<li>The principal gave evidence that the plaintiff had experienced significant stress from November 2012 onwards when dealing with the IT technicians.</li>
<li>His Honour did not agree that the plaintiff reduced his teaching role due to any family-related reasons.</li>
<li>The defendant did not present any evidence from the local principal.</li>
<li>The Magistrate&#39;s interpretation&nbsp;of&nbsp;the legislation focused on separating any non-work voluntary action from an action related to an accepted injury; and that the 52-week period is calculated &lsquo;before the injury&rsquo;.</li>
<li>The plaintiff did have an &#39;incapacity for work&#39; as a leading teacher and his resignation from this role and his subsequent work as a classroom teacher is evidence of this incapacity for work.</li>
</ul>
<p><strong>CONCLUSION</strong><br />
This case shows that care must be taken when calculating the PIAWE of workers who continue to work despite their injuries. The PIAWE should be calculated according to when their &lsquo;injury&rsquo; actually arose, rather than when it all became too much.</p>
<p>Read the judgment&nbsp;<a href="https://www.magistratescourt.vic.gov.au/sites/default/files/VMC014.pdf" target="_blank">here</a>.<br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/471/f/Janet Tucci - Adviceline Injury Lawyers pic.jpg" style="border-width: 1px; border-style: solid; width: 100px; height: 106px; float: left; margin: 3px 10px;" />Janet Tucci</strong> is an Associate at <a href="https://advicelineinjurylawyers.com.au/" target="_blank">Adviceline Injury Lawyers</a> and is an expert in personal injury law, with a strong focus on workers compensation. With her medical background, Janet can quickly and accurately assess client injuries before advising them of their rights to compensation and then negotiating successful outcomes on their behalf.</p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article.&nbsp;</a></strong></p>
https://www.lawyersalliance.com.au/opinion/calculating-weekly-payments-of-compensationhttps://www.lawyersalliance.com.au/opinion/calculating-weekly-payments-of-compensationWed, 18 Oct 2017 00:00:00 +1100Bullied nurse wins $1.4m<p><span style="font-size:14px;">The case of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2017/165.html" target="_blank"><em>Robinson v State of Queensland</em> [2017] QSC 165</a> &nbsp;made <a href="http://www.9news.com.au/national/2017/08/09/16/27/bullied-nurse-wins-1-4m-for-negligence" target="_blank">headlines</a> &nbsp;when the plaintiff, a registered nurse with Queensland Health, was awarded $1.4 million in her lawsuit against the Queensland Government.</span></p>
<p><strong><span style="font-size:14px;">THE FACTS</span></strong></p>
<p><span style="font-size:14px;">59-year-old Mary-Rose Robinson was the District Director of Nursing for the Cape York Health Service.&nbsp;</span></p>
<p><span style="font-size:14px;">Ms Turner, the Cape York Health Service District CEO, was held to be primarily responsible for the managerial misconduct that led to Ms Robinson&rsquo;s psychiatric injury. The Queensland Government was held to be vicariously liable for Ms Turner&rsquo;s actions and lack of action.&nbsp;</span></p>
<p><span style="font-size:14px;">Ms Robinson had acted as CEO prior to Ms Turner&rsquo;s appointment, and had overseen tensions between and mediation of two Weipa Hospital staff, Ms Holmes and Ms Holford.&nbsp;</span></p>
<p><span style="font-size:14px;">Reports from an external consultant, PsyCare, recommended that Ms Holmes be placed on leave pending a psychiatric medical assessment and separated from the workforce, and that formal performance management and disciplinary processes be undertaken.&nbsp;</span></p>
<p><span style="font-size:14px;">Ms Robinson&rsquo;s handover meeting with Ms Turner included an explanation of the recent tensions and the external mediation.&nbsp;</span></p>
<p><span style="font-size:14px;">During this meeting, Ms Robinson advised that she was vulnerable, because of the behaviours of the other staff members. Effectively, Ms Turner was put on notice of Ms Robinson&rsquo;s vulnerable state as well as the troubling staff members and her concerns in this respect.&nbsp;</span></p>
<p><span style="font-size:14px;">It&#39;s important to note&nbsp;that, apart from a period of separation in a more administrative role, Ms Turner did not implement the recommendations provided by PsyCare. She appeared to give this report, which outlined Ms Holmes as&nbsp;highly manipulative and vexatious, little weight.&nbsp;</span></p>
<p><span style="font-size:14px;">When Ms Holmes returned from leave, she submitted a number of workplace incident forms (WIFs), comprising unfounded and vexatious complaints targeting Ms Robinson. The WIFs were not addressed for an unreasonable length of time and were not supplied to Ms Robinson. Some were verbally dismissed by Ms Turner and a number were recommended for further review.&nbsp;</span></p>
<p><span style="font-size:14px;">The lack of access to the WIFs and their obvious, vicious targeting of Ms Robinson was very distressing for the plaintiff. The lack of resolution here was a key factor in the concerns she expressed to Ms Turner.&nbsp;</span></p>
<p><span style="font-size:14px;">Ms Robinson&rsquo;s concerns were compounded by the lack of support and lack of action (primarily) by Ms Turner. There were also a number of instances where Ms Turner undermined and humiliated Ms Robinson.&nbsp;</span></p>
<p><span style="font-size:14px;">These included a number of meetings where Ms Turner was outwardly rude and hostile in her treatment of Ms Robinson; removing her from meetings without explanation; or overruling Ms Robinson, all while in the presence of other staff members.</span></p>
<p><span style="font-size:14px;">As a result of this treatment by Ms Turner, including the lack of management of the issues regarding Ms Holmes, Ms Robinson developed a psychiatric injury and consequently suffered the loss of her career.</span></p>
<p><span style="font-size:14px;">It is significant that despite personal stressors, Ms Robinson, through examination of her role and past work history, was established to be competent and well-regarded in her role at the time, with no previous history of psychological or psychiatric problems.</span></p>
<p><span style="font-size:14px;">Ms Robinson made efforts to return to work but requested that this be in a similar role elsewhere, such as Townsville. Unfortunately, her employer made it clear that only her existing placement at Weipa was available. The thought of returning to this situation, where Ms Holmes and Ms Turner still resided,&nbsp;further compounded the issues Ms Robinson was facing and her eventual inability to ever return to employment.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">ISSUES FOR DETERMINATION</span></strong></p>
<p><span style="font-size:14px;">The employer denied that it had breached its duty of care to Ms Robinson or that any breach was causative of her condition and, consequently at trial, liability and quantum issues were both in dispute.</span></p>
<p><strong><span style="font-size:14px;">BREACH OF DUTY</span></strong></p>
<p><span style="font-size:14px;">When examining the relevant breach, Henry J outlined that the relevant duty of care was not confined, per se, to a duty to investigate. Rather, it was a duty to take timely and determinative action.&nbsp;</span></p>
<p><span style="font-size:14px;">It was determined that the defendant had breached its duty of care to Ms Robinson by failing to take timely and determinative action in response to the WIFs, which manifested in its failure to provide copies of the WIFs to Ms Robinson in a timely fashion.&nbsp;</span></p>
<p><span style="font-size:14px;">During proceedings&nbsp;Ms Turner acknowledged that it was within her power to determine that the complaints in the WIFs required no investigation because they were vexatious. Such determination and dismissal of the WIFs would have met the duty of care obligations required of the employer. Further, it was within the CEO&rsquo;s power to ensure a timely investigation of the complaints outlined within the WIFs. No investigation &ndash; let alone a timely one &ndash; occurred.&nbsp;</span></p>
<p><span style="font-size:14px;">Henry J went on to outline that the risk of psychiatric injury to Ms Robinson was reasonable and evident in her presentation of high and increasing emotional concern and distress about Ms Holmes&rsquo; targeted complaints against her. It was held that the risk of such an injury was not insignificant.</span></p>
<p><span style="font-size:14px;">The risk of injury emanated in part from the WIFs which maliciously targeted Ms Robinson, but it was the response of the defendant upon receiving the complaints that was found to be most material to the probability of a psychiatric injury.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">FINDINGS</span></strong></p>
<p><span style="font-size:14px;">Henry J found that the defendant breached its duty of care to avoid psychiatric injury by failing to take timely and determinative action on complaints in the WIFs, and that the substantial cause was the conduct &ndash; primarily by omission &ndash; of Ms Turner, for which the defendant was vicariously liable.&nbsp;</span></p>
<p><span style="font-size:14px;">Further to this, the defendant breached its duty to avoid psychiatric injury by failing to prevent managerial mistreatment by Ms Turner &ndash; for which the defendant was also vicariously liable.&nbsp;</span></p>
<p><span style="font-size:14px;">If the defendant had not breached its duty of care and dealt with the WIFs in a timely and determinative way, the source of the plaintiff&rsquo;s heightened level of emotional distress would have been removed.&nbsp;</span></p>
<p><span style="font-size:14px;">Unfortunately, Ms Robinson&rsquo;s heightened distress was perpetuated by the lack of action on the WIFs, and the ongoing failure to take timely and determinative action on same. Quite sadly, Ms Robinson&rsquo;s emotional state was pushed even further by Ms Turner&rsquo;s managerial mistreatment of her.&nbsp;</span></p>
<p><span style="font-size:14px;">Thus, Ms Robinson was awarded damages in the sum of $1,468,991.11.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/467/f/Faran Gouldson - Gouldson Legal pic.jpg" style="margin: 1px 10px; float: left; width: 120px; height: 120px;" />Faran Gouldson</strong> is the sole Director of <a href="http://www.gouldson.com.au/" target="_blank">Gouldson Legal</a>,<strong> </strong>a Queensland personal injury plaintiff litigation firm which commenced in late 1998. He has over 20 years&rsquo; experience in Queensland personal injury law and understands the challenges that clients face when approaching compensation claims. Faran has worked with thousands of injured Queenslanders in his time and now specialises predominately in especially complex and catastrophic claims.</span></p>
<p><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></p>
<p style="text-align: center;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article.&nbsp;</a></strong></p>
https://www.lawyersalliance.com.au/opinion/bullied-nurse-wins-14mhttps://www.lawyersalliance.com.au/opinion/bullied-nurse-wins-14mThu, 05 Oct 2017 00:00:00 +1100The use of secret evidence in criminal and civil proceedings<p><span style="font-size:14px;">Court procedures aim to ensure fairness between parties. In criminal matters, the intention is to ensure that the party with the most to lose, the defendant, is assured a fair trial, to avoid punishing innocent people for crimes they have not committed. This requires setting out the case against an accused clearly enough that they can refute it. In civil matters, these procedures seek to ensure fairness between the parties, including ensuring that both sides have access to relevant evidence.&nbsp;</span></p>
<p><span style="font-size:14px;">The public interest immunity exception has always been available at common law, and more recently in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ea199580/s130.html" target="_blank">s130 of the <em>Evidence Act </em>1995 (Cth) </a>(and equivalent sections in the Uniform Evidence Act jurisdictions), to exclude evidence from a proceeding that it would be contrary to the public interest to admit. The identity of police or other informers, cabinet papers, and of course national security matters have all been protected in this way. Where the relevant information might tend to assist the accused in their defence, immunity is less likely to be granted. However, once excluded, the court cannot take such evidence into account.&nbsp;</span></p>
<p><span style="font-size:14px;">Recent legislation and case law suggests that this steadfast commitment to fairness is under attack. Legislation permitting evidence to be admitted into court and made available to one side (the prosecution, in criminal matters) but not the other, for national security and similar reasons, has been found to be constitutional.&nbsp;</span></p>
<p><span style="font-size:14px;">This trend coincides with a dramatic increase in the use of civil proceedings that can impose severe penalties, traditionally available strictly as criminal punishments. Federally, control orders, preventative detention orders, and continuing detention orders (all creatures of counter-terrorism legislation) can severely curtail liberty, and allow lengthy periods of detention, on the satisfaction of the civil standard of proof, and by applying civil rules of evidence. At state level, organisations can be labelled &lsquo;outlaw&rsquo; or &lsquo;illegal&rsquo; in a civil proceeding, effectively criminalising members as a result. Therefore, the expansion of the use of secret evidence in civil proceedings is also of concern.</span></p>
<p><span style="font-size:14px;">Although courts have generally read down provisions allowing for the use of secret evidence, so that proceedings remain sufficiently fair to meet constitutional requirements, they have generally not intervened to overrule an Executive determination that evidence must be withheld for national security or similar reasons. There is a risk that such untested evidence will be unfairly prejudicial to a party to proceedings; for example, if it was based on a simple error of fact or misunderstanding.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">QUEENSLAND</span></strong></p>
<p><span style="font-size:14px;">In 2009, the <em>Criminal Organisation Act</em> 2009 (Qld) was introduced in the Queensland government&rsquo;s campaign to clamp down on serious organised crime. This Act has since been repealed. However, before this repeal the legislation was tested in the High Court on the basis that it offended the separation of powers required by Chapter III of the Constitution by undermining the institutional integrity of the Supreme Court of Queensland, in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2013/7.html" target="_blank"><em>Condon v Pompano Pty Ltd </em>(2013) 252 CLR 38</a>. The Court held unanimously that the legislation was valid, as it retained the capacity to act impartially and fairly.</span></p>
<p><span style="font-size:14px;">The Court essentially read down provisions that would undermine judicial independence, on the basis that the court retains its inherent jurisdiction to ensure fair proceedings because it retains a capacity to ensure fairness and guard against injustice.</span></p>
<p><strong><span style="font-size:14px;">WESTERN AUSTRALIA</span></strong></p>
<p><span style="font-size:14px;">A similar law was passed in Western Australia in 2003: the <em>Corruption and Crime Commission Act</em> 2003 (now the <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/wa/consol_act/ccama2003330/" target="_blank"><em>Corruption, Crime and Misconduct Ac</em>t 2003</a>). Under Part 4 of this Act, exceptional powers are made available to combat organised crime, including stopping and searching people and property without a warrant, where they are suspected of being connected to organised crime. It also provides for the Commissioner of Police (the Commissioner) to issue a &lsquo;fortification removal notice&rsquo;, where s/he is satisfied on the balance of probabilities that a premises is heavily fortified and habitually used by people involved in organised crime: <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/ccama2003330/s68.html" target="_blank">s68</a>. While such notices can be disputed, the Commissioner retains a right to label any information that it provides to the court as confidential, rendering it secret from any other person, whether they are a party to the proceedings or not: <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/ccama2003330/s76.html" target="_blank">s76(2)</a>.&nbsp;</span></p>
<p><span style="font-size:14px;">This legislation was challenged by the Gypsy Jokers Motorcycle Club (Gypsy Jokers) in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WASC/2008/166.html" target="_blank"><em>Gypsy Jokers Motorcycle Club Ltd v Commissioner of Police</em> (WA) (2008) 234 CLR 532</a>. The Gypsy Jokers received only an edited version of the affidavit that the Commissioner used in his application for a fortification removal notice relating to one of their properties. They disputed the validity of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/ccama2003330/s76.html" target="_blank">s76(2)</a> on constitutional grounds, but were unsuccessful in their appeal to the High Court, which found that the Supreme Court retained discretion to determine whether to accept the confidentiality claimed by the Commissioner, and thus was not impermissibly being directed by the Executive in the exercise of judicial functions. In that case, Kirby J noted that the majority (from which he dissented) departed from both usual judicial practice and the arguments that had been made by the parties to read the impugned provision down, so that it might not conflict with Chapter III requirements.</span></p>
<p><strong><span style="font-size:14px;">CONCLUSION</span></strong></p>
<p><span style="font-size:14px;">In recent years, the traditional requirement of open justice has been diluted by federal and state legislation. While the courts have read this legislation down, in line with Chapter III of the Constitution, the fact remains that traditional fair trial requirements have been weakened.</span></p>
<p><span style="font-size:14px;">The above cases may provide some insight into how to navigate circumstances where clients are being denied access to evidence to be used against them. It is not enough that evidence has been used without clients seeing it: actual unfairness appears to be required. Ultimately, however, evidence may be used in criminal or civil proceedings that is not accessible to those against whom it is being used.&nbsp;</span></p>
<p><em><span style="font-size:14px;">This article is an edited extract of an article that will be published in full in the October 2017 edition of Precedent focusing on civil and criminal procedure.</span></em></p>
<p><strong><span style="font-size:14px;"><img alt="" src="/sb_cache/blog/id/238/f/Anna Talbot 3 resized to square (1).jpg" style="width: 100px; height: 100px; border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; float: left;" /><br />
<br />
Anna Talbot </span></strong><span style="font-size:14px;">is the ALA&rsquo;s Legal and Policy Adviser.&nbsp;</span></p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong><span style="font-size:14px;">Learn about how you can get involved and contribute an article.&nbsp;</span></strong></a></p>
https://www.lawyersalliance.com.au/opinion/the-use-of-secret-evidence-in-criminal-and-civil-proceedingshttps://www.lawyersalliance.com.au/opinion/the-use-of-secret-evidence-in-criminal-and-civil-proceedingsThu, 21 Sep 2017 00:00:00 +1000Life as a regional plaintiff lawyer<p>Housing prices are lower, the commute to work is quicker and the air is cleaner. Life as a regional plaintiff lawyer has many benefits, but also some challenges.&nbsp;</p>
<p>1. <strong>Community involvement</strong></p>
<p>The local community is the heart and soul of a regional area. These areas thrive when people contribute to the community and they welcome new people with open arms. I found it really easy to get involved within my local community when I moved from Melbourne. Joining a sporting club, supporting local events or contributing to the local newspaper are really simple and effective ways to meet new friends and network with colleagues.&nbsp;</p>
<p>2. <strong>Living close to the office</strong></p>
<p>When I lived in Melbourne, it used to take me about half an hour to get to work by tram and then a short walk. That&rsquo;s actually not too bad for Melbourne, and while I didn&rsquo;t really complain about it at the time, now I couldn&rsquo;t go back. I currently live a five-minute drive from my office. I can easily duck home for lunch and to make sure that the puppy hasn&rsquo;t destroyed the backyard. At the end of the day, I can leave work and get home at a reasonable hour. The work-life balance is brilliant. A downside, though, is that it&rsquo;s pretty likely when you&rsquo;re living in the same town that you work, you&rsquo;re going to see your clients in the local supermarket on the weekend when you&rsquo;re in your active wear.&nbsp;</p>
<p>3. <strong>Access to justice&nbsp;</strong></p>
<p>As a regional plaintiff law firm, we have a main office and several visiting offices around the area where clients are seen. Sometimes, due to illness of injury, our clients are unable to travel to one of our offices, which means that we will visit them. This might mean visiting remote areas of the country and having to travel two to three hours one way. It is really important though that every person has access to justice and quality legal representation, irrespective of their geographical location.&nbsp;</p>
<p>Further, in the country, we don&rsquo;t have a County and Supreme Court judge sitting full-time, so we rely on the circuit system where judges will visit for two to three weeks every few months to hear numerous cases. Although a crazy few weeks for the lawyers, the circuit system allows our clients to have their matters heard without the need to travel to the city.&nbsp;</p>
<p>In saying that, there are definitely still problems with access to justice for regional clients. Unfortunately, the large majority of independent medical examiners are based in capital cities, as are settlement conferences. These long trips up and down the highway do take a toll on the ill and injured.&nbsp;</p>
<p>4. <strong>Local people with local knowledge</strong></p>
<p>My experience has been that people in the country will go to the same lawyer that they have seen for a number of years who has done their parents&rsquo; wills, their grandparents&rsquo; conveyancing and various general family or criminal matters. In that sense, being involved in a specialist personal injury firm is difficult in that sense because you sometimes have to &nbsp;explain to locals that they don&rsquo;t need to go to the city to receive quality legal advice; that there are specialised local plaintiff law firms that exist to assist clients with their needs.&nbsp;</p>
<p>5. <strong>Property&nbsp;</strong></p>
<p>I&rsquo;m quite partial to smashed avocado so it was going to take me a very long time to get into the property market in Melbourne and when I did, it would&rsquo;ve been in the outer suburbs which would have meant &nbsp;a longer commute to my old CBD office. However, &nbsp;in a regional area where house prices are much more reasonable, I am able to own a home and afford delicious smashed avocado brunches.&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/465/f/Claire Barrance - Maurice Blackburn.PNG" style="border-width: 1px; border-style: solid; margin: 1px 10px; float: left; width: 100px; height: 121px;" />Claire Barrance </strong>grew up in Gippsland and moved to Melbourne for university. She worked at a defendant insurance litigation firm for a number of years before moving to Maurice Blackburn Lawyers in Traralgon where she is an Associate in the road injuries department. In 2017, she was awarded and was awarded Regional Lawyer of the Year by the Law Institute of Victoria.<strong>&nbsp;</strong></p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p style="text-align: center;">&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/life-as-a-regional-plaintiff-lawyerhttps://www.lawyersalliance.com.au/opinion/life-as-a-regional-plaintiff-lawyerThu, 14 Sep 2017 00:00:00 +1000Implications of the NDIS on personal injury compensation<p><span style="font-size:14px;">The purpose of this article is to alert lawyers practising in the personal injury field to the implications of the introduction of the National Disability Insurance Scheme (NDIS) on clients entitled to receive compensation for their injuries.&nbsp;</span></p>
<p><span style="font-size:14px;">The NDIS provides reasonable and necessary supports to people with a disability around Australia who meet defined eligibility criteria. The NDIS began with a gradual rollout on 1 July 2013 and is expected to be fully implemented across Australia by 2019. The <a href="http://www.australia.gov.au/directories/australia/ndia" target="_blank">National Disability Insurance Agency</a> (NDIA) is the independent statutory agency that has been set up to manage the scheme.&nbsp;</span></p>
<p><span style="font-size:14px;">The NDIS is governed by the <a href="https://www.legislation.gov.au/Details/C2013A00020" target="_blank"><em>National Disability Insurance Scheme Act</em> 2013 (Cth)</a> (the Act) and allows for the making of Rules and Regulations. There have already been numerous Rules made under the Act which, together with Operational Guidelines, are intended to provide interpretive assistance.&nbsp;</span></p>
<p><span style="font-size:14px;">The scheme is available to:&nbsp;</span></p>
<ul><li><span style="font-size:14px;">Australian citizens (or holders of certain visas) aged 65 or less when they first apply to enter the scheme; and</span></li>
<li><span style="font-size:14px;">who have a permanent impairment that significantly affects their ability to take part in everyday activities; or&nbsp;</span></li>
<li><span style="font-size:14px;">who have a developmental delay.</span></li>
</ul>
<p><span style="font-size:14px;">The NDIA is intended to fund reasonable and necessary supports, including early intervention supports, for participants. The types of supports funded include mobility equipment, vehicle modifications, help with household tasks, transport, therapeutic support and workplace help. Section 34 of the Act sets out the relevant factors to consider in determining whether a support is reasonable and necessary. There have also been a number of cases already heard in the Administrative Appeals Tribunal which give examples on what will and will not be considered as reasonable and necessary. &nbsp;</span></p>
<p><span style="font-size:14px;">There are specific rules for participants who may be eligible for or have received a compensation payment. Compensation is defined under <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ndisa2013341/s11.html" target="_blank">s11</a> of the Act and includes a payment made (with or without an admission of liability) for injuries sustained in a motor vehicle accident, at work, through medical negligence or due to public liability.&nbsp;</span></p>
<p><span style="font-size:14px;">Where a participant of the scheme receives compensation, the participant is required to repay to the NDIA amounts that the Authority has paid out related to the compensable injury (ss<a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ndisa2013341/s106.html" target="_blank">106</a> and <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ndisa2013341/s107.html" target="_blank">107 </a>of the Act). Where the participant&rsquo;s compensation has been reduced for contributory negligence, the repayment will be reduced by the same proportion. It is therefore important that settlement documents clearly reflect what portion, if any, of the settlement is reduced for contributory negligence.&nbsp;</span></p>
<p><span style="font-size:14px;">Under <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ndisa2013341/s104.html" target="_blank">s104</a> of the Act, the CEO of the NDIA can require a participant or prospective participant who may be entitled to compensation in respect of a personal injury, to take a specific action to enable them to obtain compensation. Failure to take this action can result in the participant&rsquo;s plan being suspended, or the prospective participant&rsquo;s plan not coming into effect.&nbsp;</span></p>
<p><span style="font-size:14px;">In requiring a participant or prospective participant to take a certain action, the CEO must take into account a whole range of factors which are outlined under <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ndisa2013341/s104.html" target="_blank">s104 </a>of the Act. These factors are mainly related to the reason why the participant has not claimed compensation and the impact that requiring certain action to be taken will have on the participant and their family.</span></p>
<p><span style="font-size:14px;">An interesting power related to this is that under <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ndisa2013341/s105.html" target="_blank">s105</a> of the Act, the CEO of the NDIA can take action to obtain compensation or to take over the conduct of an existing claim for compensation in the name of the participant or prospective participant. They must give 28 days&rsquo; notice of their intention to do so.&nbsp;</span></p>
<p><span style="font-size:14px;">If the NDIA takes action, or takes over a claim, they then become liable for the costs of and incidental to the claim and are thereby taking on the risk of litigation. Any settlement or judgment made as a result of a claim taken on or over by the CEO, is paid to the NDIA. The NDIA deduct the cost of the benefits paid to the participants, any costs of and incidental to the claim paid by the Agency, with the balance going to the participant or prospective participant.&nbsp;</span></p>
<p><span style="font-size:14px;">It will be interesting to see how often this right is exercised by the NDIA as it creates an avenue where a person can obtain compensation for their injuries, without the risks, stress and upfront costs associated with litigation.&nbsp;</span></p>
<p><span style="font-size:14px;">People who have already obtained compensation for their injuries may still be able to claim support under the NDIS in the future. Before approving funding, the NDIA must calculate the compensation reduction amount (CRA), based on the settlement or judgment figure. There are different rules for calculating the CRA which depend on whether the compensation was arrived at by settlement or judgment. These are outlined in Rule 3 of the <a href="https://www.legislation.gov.au/Details/F2013L01414" target="_blank">Accounting for Compensation Rules</a>.&nbsp;</span></p>
<p><span style="font-size:14px;">The NDIS is complex, with the Act running for nearly 200 pages and numerous Rules and Operational Guidelines already published. It&rsquo;s going to be a significant challenge for lawyers working in personal injury to ensure that they are up to date, however, I hope that ultimately the NDIS will be able to fulfil its purpose of helping Australians with a disability to get the care and support that they need.&nbsp;</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/463/f/Sarah Vinall - Mellor Olsson Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 1px 10px; float: left; width: 100px; height: 133px;" /><br />
Sarah Vinall </strong>is a Senior Associate at <a href="http://www.mellorolsson.com.au/" target="_blank">Mellor Olsson Lawyers</a> in their Adelaide office, where she has worked for the last 11 years. She specialises in personal injury law, in particular medical negligence, motor vehicle accidents and public liability claims. Sarah is a committee member of the South Australian branch of the ALA.&nbsp;</span></p>
<p>&nbsp;</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and&nbsp;contribute an article. </strong></a></p>
https://www.lawyersalliance.com.au/opinion/implications-of-the-ndis-on-personal-injury-compensationhttps://www.lawyersalliance.com.au/opinion/implications-of-the-ndis-on-personal-injury-compensationThu, 07 Sep 2017 00:00:00 +1000The Urogynaecological Mesh scandal<p>Approximately 50% of women who have had children will suffer some degree of pelvic organ prolapse (POP) and/or stress urinary incontinence (SUI). Some women may suffer from both problems. It is most common in menopausal women who have had multiple pregnancies, difficult deliveries or bigger babies. The prolapsing organs can be the uterus, bowel and bladder.</p>
<p>Women suffering from POP can experience a sensation of something coming down or out of the vagina, a heavy dragging feeling, problems with passing urine such as stress incontinence, urinary tract infections, bowel-emptying problems and discomfort during sex.</p>
<p>Initially, a doctor may recommend conservative treatments such as pelvic floor exercises and the use of pessaries. Pelvic floor exercises may strengthen surrounding muscles and a vaginal pessary is a removable device placed into the vagina to support areas of POP. However, for a significant number of women these measures may be insufficient. Historically, the next step has typically been to consider surgery using mesh. The mesh is implanted into spaces/compartments in the pelvis and held in place by sutures or tissue fixation devices to points in the pelvic floor muscles and ligaments.</p>
<p>Given the number of women who suffer POP or urinary stress incontinence, it is immediately possible to see what an enormous potential and ongoing market exists for surgical mesh products. As a result a large number of different mesh products have found their way onto the market. They are either synthetic or porcine (pig-based product) devices.</p>
<p>The Australian Therapeutic Goods Administration (TGA) began monitoring surgical meshes in 2008 and published information for the public and health professionals. From 2010, the TGA monitored these products through its adverse event reporting system.</p>
<p>Between 2006 and 2012, the TGA received 63 adverse event reports for all urogynaecological surgical meshes. From July 2012 to 1 June 2016, the TGA received 99 adverse events reports. The most frequently reported adverse events were pain and erosion. It would be safe to say that the reported adverse events would in no way represent the true number of women who have experienced significant problems since having mesh implanted. The TGA encourages consumers and health professionals to report problems with medical devices, but doctors may not want to jeopardise their relationships with companies that manufacture the products and women may not be aware that they can self-report to the TGA.</p>
<p>In May 2017, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists made a submission to the Senate Community Affairs References Committee. It noted that between 2002 and 2015, 106,150 women had mid-urethral sling procedures. The mid-urethral sling procedure is performed to treat urinary incontinence and involves laparoscopic and per-vaginal surgery where mesh is inserted under the urethra for support. Of the 106,150 operations, 7.3% needed either sling revision or division.</p>
<p>The UroGynaecological Society of Australasia (UGSA) has compiled a voluntary database on urogynaecological procedures. It is acknowledged as being not particularly helpful as it predominantly contains data from sub-specialists. Urogynaecology is a subspecialty of gynaecology, but many gynaecologists believe that they are suitably qualified to perform mesh surgery. However, the database does tell us that from 1999, in Australia, approximately 120,000 women have had a mid-urethral sling procedure.</p>
<p>According to the UGSA submission, it was estimated in 2012 that 2.3 out of every 1,000 women underwent surgery for POP, but the percentage of these with mesh is unknown because surgery coding does not distinguish how the repair was done.</p>
<p>The <a href="http://www.dailytelegraph.com.au/rendezview/why-arent-we-talking-more-about-one-of-australias-greatest-medical-scandals/news-story/92f4cb833ba105f6e86eefd82404afe1" target="_blank">Senate Inquiry</a> also revealed that women unable to have vaginal sex after mesh surgery were being advised by their doctors to have anal sex instead.</p>
<p>The problems women can suffer can be serious and debilitating. The <a href="https://www.tga.gov.au/alert/urogynaecological-surgical-mesh-complications" target="_blank">TGA lists</a> 30 adverse events that may be associated with meshes. Most serious problems include punctures or lacerations of vessels, nerves, structures or organs, including the bladder, urethra or bowel which may require surgical repair.</p>
<p>One patient, Ms Caz Chisolm, who has since set up the Australian Pelvic Mesh Support Group, says that many women were not told of the risks of mesh surgery, and did not give informed consent to the implantation of mesh.</p>
<p>There are currently class actions underway in Australia. The largest is the Ethicon class action commenced in July 2017 in the Australian Federal Court against Johnson &amp; Johnson. However, it is evident that the problem extends beyond the current legal cases.</p>
<p>In my experience, clients suffering from complications associated with mesh may experience the trauma as similar to the aftermath of a sexual assault. Women go to see a gynaecologist with a personal, sensitive medical condition which may be having a detrimental effect on their relationship and sex-life. If the outcome of seeking treatment results in further trauma to their gynaecological organs it may be psychologically processed as sexual trauma inflicted upon them. For this reason, a thorough psychological or psychiatric assessment may be warranted.</p>
<p>The mesh problem is not going to go away any time soon. So many women have had mesh implanted and problems related to mesh can emerge over an extended period. However, we do know that the TGA knew mesh was a problem long before adequate action was taken to let the public know the risk it presents.</p>
<p><br />
<strong><img alt="" src="/sb_cache/blog/id/8/f/Ngaire Watson.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 100px; height: 100px;" /> </strong></p>
<p><strong>Ngaire Watson</strong> is a barrister at <a href="http://www.sirowendixon.com.au/" target="_blank">Sir Owen Dixon Chambers</a>, Sydney. She is an ALA member and a member of the <em>Precedent</em> editorial committee.&nbsp; Ngaire is also a Registered Nurse and specialises in medical negligence litigation.<strong>&nbsp;</strong><br />
&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/the-urogynaecological-mesh-scandalhttps://www.lawyersalliance.com.au/opinion/the-urogynaecological-mesh-scandalThu, 31 Aug 2017 00:00:00 +1000Orthopaedic eponyms<p><strong>Dr Roger Pillemer is an orthopaedic surgeon in private practice in Sydney, who has a particular interest in matters relating to Workers Compensation and impairment assessments. Dr&nbsp;Pillemer has been a regular presenter at&nbsp;the NSW State Conference.</strong></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;">&nbsp;</p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.</strong></a></p>
<p style="text-align: center;">&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/orthopaedic-eponymshttps://www.lawyersalliance.com.au/opinion/orthopaedic-eponymsThu, 17 Aug 2017 00:00:00 +1000Superannuation disability insurance: tips and traps<p><span style="font-size:14px;">Lawyers often come across superannuation statements with possible entitlements buried in the fine print. This article offers ten tips for successful total and permanent disablement (TPD) claims under insurance held through superannuation.</span></p>
<p><span style="font-size:16px;"><strong>Tip 1: Learn the language</strong></span></p>
<p><span style="font-size:14px;">TPD claims have two distinct elements: the fund&#39;s trust deed and the insurance contract. Each superannuation fund is governed by a <strong>trust deed </strong>and has a <strong>trustee. </strong>The <strong>trust deed </strong>sets out the terms of the fund and some of the obligations of the <strong>trustee </strong>to the members of the fund.</span></p>
<p><span style="font-size:14px;">The <strong>trustee </strong>of the superannuation fund takes out a contract of insurance with the insurer. Members of the fund are strangers to the contract but can enforce the terms of the contract under the principles in <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1988/44.html?stem=0&amp;synonyms=0&amp;query=Trident%20and%20McNiece" target="_blank"><em>Trident v McNiece </em>(1988) 165 CLR 107</a>, that is, that beneficiaries of a policy of insurance can enforce its terms despite not being a party to the contract. The trust deed and the contract of insurance will each include criteria for when benefits are payable and will define what the benefit is.</span></p>
<p><span style="font-size:16px;"><strong>Tip 2: Always consider a superannuation insurance claim</strong></span></p>
<p><span style="font-size:14px;">If a client has time off work due to an illness or injury, a superannuation insurance claim must be considered. The starting point is to find out which superannuation fund the client is a member of and to write to the fund asking for a copy of:</span></p>
<ul><li><span style="font-size:14px;">the trust deed as at the date of injury/date last worked, including any amendments; and</span></li>
<li><span style="font-size:14px;">any contract of insurance relevant to the member as at the date of injury/date last worked.</span></li>
</ul>
<p><span style="font-size:16px;"><strong>Tip 3</strong>: <strong>Superannuation claims are not compensation claims</strong></span></p>
<p><span style="font-size:14px;">A superannuation claim must be considered independently from any other claim that the client may have (for example, workers&#39; compensation, motor vehicle accident and medical negligence claims). Such claims are not compensation claims: the law, evidence and outcomes differ. The benefit is payable if the conditions in the insurance contract are met. It is not necessary to prove that the illness or injury is work-related or was caused by negligence.</span></p>
<p><span style="font-size:16px;"><strong>Tip 4: Keep in mind the obligations of the trustee and the insurer </strong></span></p>
<p><span style="font-size:14px;">The trustee&#39;s obligations are prescribed by s52 of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/sia1993473/" target="_blank"><em>Superannuation Industry (Supervision) Act</em> 1993 (Cth)</a> and require the trustee to:</span></p>
<ul><li><span style="font-size:14px;">exercise, in relation to all matters affecting the fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide;</span></li>
<li><span style="font-size:14px;">ensure that its duties and powers are performed and exercised in the best interests of the beneficiaries; and</span></li>
<li><span style="font-size:14px;">exercise its discretion in good faith.</span></li>
</ul>
<p style="margin-left:3.6pt;"><span style="font-size:14px;">The insurers&#39; obligations are prescribed by are prescribed by s13 of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ica1984220/" target="_blank"><em>Insurance Contracts Act </em>1984 (Cth)</a>. In pursuit of its paramount duty to act with the utmost good faith, the insurer must:</span></p>
<ul><li><span style="font-size:14px;">consider, and determine, the correct question;</span></li>
<li><span style="font-size:14px;">correctly interpret the contract of insurance;</span></li>
<li><span style="font-size:14px;">make the decision required to be made;</span></li>
<li><span style="font-size:14px;">act in good faith and to observe fair dealing in respect of both the trustee and the plaintiff;</span></li>
<li><span style="font-size:14px;">have due regard for the interests of the plaintiff; and</span></li>
<li><span style="font-size:14px;">act reasonably in considering whether a state of affairs governing entitlement exists and in coming to its conclusion on that question.</span></li>
</ul>
<p style="margin-left:3.6pt;"><span style="font-size:16px;"><strong>Tip 5: The decision-making process</strong></span></p>
<p><span style="font-size:14px;">The focus of a TPD claim is on the decision-making process. It is not enough to be able to prove that your client has a TPD; you must prove that the decision of the trustee or the insurer (or both) was unreasonable. Consider:</span></p>
<ul><li><span style="font-size:14px;">if the trustee and the insurer made an independent decision;</span></li>
<li><span style="font-size:14px;">whether the correct legal test was applied;</span></li>
<li><span style="font-size:14px;">whether all information before the trustee and the insurer was considered; and</span></li>
<li><span style="font-size:14px;">if the decision was otherwise unreasonable at law.</span></li>
</ul>
<p><span style="font-size:16px;"><strong>Tip 6: Carefully consider all elements of the TPD definition </strong></span></p>
<p><span style="font-size:14px;">Not all TPD definitions are the same. It is important to consider the precise terms of the definition and to break it down into its core elements. Consider:</span></p>
<ul><li><span style="font-size:14px;">is the definition an &lsquo;unlikely&rsquo; or an &lsquo;unable&rsquo; definition?</span></li>
<li><span style="font-size:14px;">is the definition an &lsquo;own occupation&rsquo; or an &lsquo;any occupation&rsquo; definition?</span></li>
<li><span style="font-size:14px;">what falls within the ambit of &lsquo;education, training and experience&rsquo;?</span></li>
</ul>
<p><span style="font-size:14px;">The recent case of <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2016/68.html?stem=0&amp;synonyms=0&amp;query=TAL%20Life%20Limited%20and%20Shuetrim" target="_blank"><em>TAL Life Limited v Shuetrim; MetLife Insurance Limited v Shuetrim </em>[2016] NSWCA 68</a> (<em>Shuetrim</em>) has significantly altered the landscape regarding the meaning of the word &lsquo;unlikely&rsquo;. The NSW Court of Appeal held that a real chance that a person will return to work to which they are suited, even if it is less than a 50% chance, will mean that they do not have a TPD.</span></p>
<p><span style="font-size:16px;"><strong>Tip 7: Medical evidence and submissions must focus on the questions to be answered</strong></span></p>
<p><span style="font-size:14px;">A negative decision can only be challenged if it was unreasonable in taking into account the medical and other evidence before the decision-maker: see<a href="http://www.austlii.edu.au/au/cases/qld/QCA/2001/317.html" target="_blank"> <em>McArthur v Mercantile Mutual Life Insurance Co Ltd </em>[2001] QCA 317</a>; <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2014/205.html" target="_blank"><em>Hannover Life Re Limited of Australasia v Sayseng </em>[2005] NSWCA 214</a>. It is essential that all material on which your client wants to rely is before the decision-maker. It is not enough to rely on reports obtained for workers&#39; compensation or other compensation claims: see <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/1998/376.html?stem=0&amp;synonyms=0&amp;query=Maciejewski%20and%20Telstra%20Super%20Pty%20Ltd" target="_blank"><em>Maciejewski v Telstra Super Pty Ltd </em>(1998) 44 NSWLR 601</a><em>.</em></span></p>
<p><span style="font-size:14px;">If the claim gets to court, the question of whether the rejection of the claim was unreasonable will be decided by reference to the evidence that was before the decision-maker. Later evidence will not be relevant to that question and will be inadmissible.</span></p>
<p><span style="font-size:16px;"><strong>Tip 8: Understand the tax implications of a payment</strong></span></p>
<p><span style="font-size:14px;">Where a benefit under an insurance contract is paid, the client has a number of options about what to do with the money. It is essential that the client get independent financial advice about how an insurance benefit should be paid.</span></p>
<p><span style="font-size:14px;">There are significant taxation consequences. For example, if the monies are withdrawn from the superannuation fund before the client&#39;s preservation date, it is subject to taxation. Monies left in superannuation are non-taxable.</span></p>
<p><span style="font-size:16px;"><strong>Tip 9: What to do if the claim is refused</strong></span></p>
<p><span style="font-size:14px;">If a claim is refused, consider applying for an internal review of the decision. That review allows you to consider the reasons for refusal and to put new evidence before the trustee and the insurer that attempts to address the reasons for rejection.</span></p>
<p><span style="font-size:14px;">If a review does not succeed, you will file a proceeding in court. TPD claims have two elements:</span></p>
<ol><li><span style="font-size:14px;">The court looks to whether the trustee and insurer&#39;s decisions were unreasonable. Unreasonableness can be made out on any of the grounds described above. The assessment of unreasonableness is made based on the information that was before the decision-maker at the time the decision was made. Fresh evidence is generally not admissible.</span></li>
<li><span style="font-size:14px;">If the court finds unreasonableness in the decision it can:</span></li>
</ol>
<ul><li><span style="font-size:14px;">remit the decision to the trustee or insurer for decision according to law; or</span></li>
<li><span style="font-size:14px;">make the decision afresh.</span></li>
</ul>
<p><span style="font-size:14px;"><em>Shuetrim </em>has endorsed the two-stage approach as good law and an established principle in this area. This approach has also been approved in Queensland (<em>McArthur v Mercantile Mutual Life Insurance Co Ltd </em>[2002] 2 Qd R 197), Victoria (<a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2014/205.html?stem=0&amp;synonyms=0&amp;query=Hannover%20Life%20Re%20of%20Australasia" target="_blank"><em>Hannover Life Re of Australasia v Collela</em> [2014] VSCA 204</a>) and Western Australia (<a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WASCA/2002/264.html?stem=0&amp;synonyms=0&amp;query=HCF%20Life%20Insurance%20Company%20Pty%20Ltd%20and%20Kelly" target="_blank"><em>HCF Life Insurance Company Pty Ltd v Kelly </em>[2002] WASCA 264</a>).</span></p>
<p><span style="font-size:14px;">The Superannuation Complaints Tribunal provides an alternative, low cost forum for the determination of complaints from members of superannuation funds. The Tribunal can remit the matter to the trustee for re-consideration or affirm, vary or set aside the decision (and substitute a different decision for the decision set aside). Appeals from decisions of the Tribunal are made to the Federal Court on questions of law.</span></p>
<p><span style="font-size:16px;"><strong>Tip 10: Think creatively about statute limitation expiry dates</strong></span></p>
<p><span style="font-size:14px;">A court proceeding must be commenced within six years of the date of the breach. That date is usually the date on which the claim was rejected.</span></p>
<p><span style="font-size:14px;">The dates may be different for the insurer&#39;s decision and the trustee&#39;s decision.</span></p>
<p><span style="font-size:14px;">If the claim is made more than six years after the decision, it will be statute-barred. However, it is possible that seeking a review of the original decision can refresh the statutory limitation. If the review is declined, the statute of limitations may run from the date of the second refusal.</span></p>
<p><span style="font-size:14px;">It is arguable that a longer period of time is applicable to challenging the trustee&#39;s decision given the decision is based on a trust deed. The legislation in some jurisdictions provides a 12 year time limit for actions found on a deed. In other states, such as South Australia and Victoria, a 15 year limitation period is applicable as the action in respect of the superannuation trust is considered to be a specialty: see <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2009/315.html?stem=0&amp;synonyms=0&amp;query=Tuftevski%20and%20Total%20Risk%20Management%20Pty%20Ltd" target="_blank"><em>Tuftevski v Total Risk Management Pty Ltd</em> [2009] NSWSC 315</a>.</span></p>
<p><em><span style="font-size:14px;">This is a condensed version of an article called &lsquo;Tips and Traps&rsquo; that first appeared in the Law Institute of Victoria&rsquo;s (LIV)&nbsp;Law Institute Journal on 1 June 2017. You can read the LIV article <a href="https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/June-2017/Tips-and-traps" target="_blank"><strong>here</strong></a>.</span></em></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/454/f/annemarie-gambera.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 100px; height: 100px;" /><br />
Annemarie Gambera is a principal lawyer at <a href="https://www.slatergordon.com.au/" target="_blank">Slater &amp; Gordon</a> </strong>whose expertise is in insurance and dispute resolution.&nbsp;</span></p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><span style="font-size:14px;"><strong>Learn how you can get involved and contribute an article.&nbsp;</strong></span></a></p>
https://www.lawyersalliance.com.au/opinion/superannuation-disability-insurance-tips-and-trapshttps://www.lawyersalliance.com.au/opinion/superannuation-disability-insurance-tips-and-trapsThu, 10 Aug 2017 00:00:00 +1000Psychometric testing of malingering<p><strong><em>&lsquo;He uses statistics like a drunken man uses lamp posts &ndash; for support rather than illumination.&rsquo; </em></strong><strong>Andrew Lang (1844-1912)</strong></p>
<p>In litigation, clients are often referred for psychometric assessment involving administration of a battery of Symptom Validity Assessment Tests (SVTs) to determine whether the client is over-reporting the extent/severity of their psychological symptoms. SVTs and an associated interview usually take 4-6 hours &ndash; in one session. Misplaced belief in the accuracy of these tests <em>as they are administered and reported on</em> can cause great mischief in fairly assessing the psychological status of litigants. Indeed, in a substantial proportion of cases, SVTs misclassify honest responders as over-reporters or malingerers.</p>
<p>The remedy is easy enough, if the problem is properly understood. And so some elaboration is necessary&hellip;</p>
<p><strong>WHAT ARE SVTS? </strong></p>
<p>They are questionnaires or performance-based tests.</p>
<p><strong>HOW ARE SVTS DEVELOPED?</strong></p>
<p>One approach is simple: answers to some questions are so improbable that they cannot be founded in reality;&nbsp;for example, &#39;Do you think trees have the ability to feel peoples&rsquo; emotions?&#39;&nbsp;Another approach is to test performance by asking the client to perform tests that appear difficult but are actually so easy that virtually everyone who can function in society will pass them. Yet another approach is to ask numerous questions and, through sophisticated statistical methods, identify responses that discriminate between individuals trying to fake and those who have genuine psychopathology. After repeated trials the reliability and validity of tests are established, with norms available to compare individuals against the sample population from which the tests were developed.</p>
<p>Psychological reports based on&nbsp;SVTs and clinical assessments typically proceed as follows:</p>
<p><strong>1. Justification for testing</strong></p>
<p>This is usually prefaced by: &lsquo;Symptom validity assessment is conducted to measure exaggeration of complaints and alleged deficits, using validated measures and approaches.&rsquo;</p>
<p><strong><em>Comment: </em></strong>Since no SVTs were validated and normed in extended testing sessions, we don&#39;t know how badly this affects test performance &ndash; but it will not be beneficial.</p>
<p><strong>2. Justification for extended testing sessions</strong></p>
<p>This is never justified. Clients can ask for breaks when required but they are often encouraged to keep on going.</p>
<p><strong><em>Comment</em></strong>: Repeated/lengthy testing can often cause&nbsp;clients to become demotivated, disengage from the testing process and answer in a random or lacklustre way. This response&nbsp;is particularly prevalent on lengthy tests such as the Minnesota Multiphasic Personality Inventory-2-Revised Form (MMPI-2-RF), which has 338 questions. Since clients referred for testing claim to have significant psychopathology, ethical considerations require that problems of fatigue, demotivation, etc,&nbsp;are appropriately managed.</p>
<p><strong>3. Test results based on percentile ranks/standard scores/deviations </strong></p>
<p>Results of tests reported in standard scores are easily expressed as percentile ranks. Thus, some assessors report as follows: &lsquo;On the Response Inconsistency Scale, Mr X&rsquo;s symptoms were more extreme than 95% of all test-takers.&rsquo; &nbsp;</p>
<p><strong><em>Comment: </em></strong>The diagnostic accuracy of a test can be expressed in terms of specificity and sensitivity. Specificity&nbsp;is a measure of how accurate a test is against false positives (that is, the proportion of those who do not have a disease/condition who&nbsp;will have a negative result) while sensitivity&nbsp;is essentially how good a test is at finding something (that is, a disease/condition) if it&#39;s there. Diagnostic accuracy (that is, sensitivity and specificity) is only one part of the equation that describes the efficacy of a diagnostic instrument. The other part is predictive power, which depends on both diagnostic accuracy and the prior probability (that is, prevalence, or base rate) of the disease/condition being tested for.</p>
<p>For example, if a test to detect a disease, the prevalence of which is 1/1000, has a specificity of 95% (that is, a false positive rate of 5%) the chance that a person found to have a positive result actually has the disease is only 1.9%. Employing Bayes Theorem, 51/1000 would test positive (1 true positive and 50 false positives). Expressed as a proportion, this is 1/51=0.019, or 1.9%.</p>
<p>With a base rate of over-reporting of about 4% in Australia, virtually none of the commonly employed SVTs has a predictive power greater than 50%: it usually hovers around 30%. <strong>And so these SVTs, in the majority of cases, misclassify honest responders as over-reporters or malingerers.</strong></p>
<p><strong>PSYCHOPATHOLOGY AND OVER-REPORTING ARE NOT MUTUALLY EXCLUSIVE </strong></p>
<p>Finding over-reporting or even a diagnosis of malingering is not evidence that the test-taker is free of dysfunction. Individuals with genuine disorders may over-report their symptoms or fabricate others for a variety of reasons. Thus, positive findings on SVTs over-reporting indicators do not, <em>per se</em>, rule out the possibility that the client is psychologically disordered.</p>
<p><strong>TAKE-HOME MESSAGES</strong></p>
<p>Extended psychological testing of clients is contraindicated where psychopathology is claimed and needs to be considered on an individual basis.</p>
<p>Using statistics for support rather than to explain results in psychological assessments based on SVTs overestimates malingering very significantly indeed.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/452/f/Ian Coyle pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 100px; height: 122px;" /></strong><br />
Professor<strong> Ian R Coyle </strong>is an ALA member and Psychologist, Ergonomist/Human Factors Engineer and Psychopharmacologist. He has given expert evidence for 35 years in these disciplines, in Australia and internationally.<strong> </strong></p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article. </strong></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/psychometric-testing-of-malingeringhttps://www.lawyersalliance.com.au/opinion/psychometric-testing-of-malingeringThu, 03 Aug 2017 00:00:00 +1000Some traditions need to change: students and sexual abuse<p><span style="font-size:14px;">Being a university student is sometimes described as the best years of one&rsquo;s life &ndash; full of opportunity, education and freedom.</span></p>
<p><span style="font-size:14px;">Unfortunately for some, the experience is not a positive one.</span></p>
<p><span style="font-size:14px;">This week, the Australian Human Rights Commission (the Commission) released a <a href="https://www.humanrights.gov.au/sites/default/files/document/publication/AHRC_2017_ChangeTheCourse_UniversityReport.pdf" target="_blank">report </a>on sexual assault and harassment of university students. The report details disturbing instances of sexual assault and harassment. The impact on survivors has at times been catastrophic. Most concerning, however, is the response by some universities and colleges to reports of abuse.</span></p>
<p><span style="font-size:14px;">Sadly, this is an old story that has been re-told over generations.</span></p>
<p><span style="font-size:14px;">In 1977, 18 year-old student Annette Louise Morgan was found bashed, raped and murdered on St Paul&rsquo;s Oval on University grounds. Police believe that her killer used his fists and hands to strangle her.</span></p>
<p><span style="font-size:14px;">The then warden of St Paul&rsquo;s College told the media of the shock and devastation he felt at her death. But just weeks later, St Paul&rsquo;s College students awarded the annual &ldquo;Animal Act of the Year Award&rdquo; to one of four male students accused of gang-raping a student from The Women&rsquo;s College. Nobody was charged. It was business as usual for the College.</span></p>
<p><span style="font-size:14px;">Four decades on and little has been done to correct this vile culture of abuse.</span></p>
<p><span style="font-size:14px;">We have heard appalling reports of behaviour at St Paul&rsquo;s College, where <a href="http://www.news.com.au/lifestyle/real-life/news-life/rooting-slaying-and-harpooning-women-sexism-at-elite-st-pauls-college-exposed/news-story/9f20570a9c9ca70b1ecc44706c22d09f" target="_blank">&lsquo;rooting&rsquo;, &lsquo;slaying&rsquo; and &lsquo;harpooning&rsquo;</a> are some of the ways that residents describe sexual intercourse with women.&nbsp;Female students have spoken out against the derogatory statements but it would appear that little is being done to reprimand the male perpetrators of this reprehensible language.</span></p>
<p><span style="font-size:14px;">These are not isolated events.</span></p>
<p><span style="font-size:14px;">In 2009, St Paul&rsquo;s College students created a pro-rape Facebook group titled &lsquo;<a href="http://www.news.com.au/lifestyle/real-life/news-life/rooting-slaying-and-harpooning-women-sexism-at-elite-st-pauls-college-exposed/news-story/9f20570a9c9ca70b1ecc44706c22d09f" target="_blank">Define Statutory: Pro-rape, Anti-consent</a>&rsquo;.</span></p>
<p><span style="font-size:14px;">We have been consulted by many people who have been subjected to sexual harassment, bullying and sexual assaults while studying at Australian universities. These young people are suffering significant psychological and psychiatric conditions as a result of what they have been subjected to.</span></p>
<p><span style="font-size:14px;">In 2016, the Commission <a href="https://www.theguardian.com/australia-news/2017/apr/04/human-rights-commission-defends-survey-on-university-sexual-assaults" target="_blank">conducted a survey</a> to gather data on the number of sexual assaults on university campuses for its report. The Commission received 39,000 responses, after a random sample of 60,000 students across Australia&rsquo;s 39 universities were invited to take part. Two thousand submissions from people who had experienced sexual assault or harassment while at university were also received.</span></p>
<p><span style="font-size:14px;">Channel 7&rsquo;s <em>Sunday Night</em> program recently reported that out of 575 sexual assault complaints made in the past five years to Australian universities &ndash; 145 of which were rape &ndash; only six resulted in expulsions. These figures suggest that sexual assault and rape are not being treated seriously enough.</span></p>
<p><span style="font-size:14px;">The Commission&rsquo;s report raises questions about the duty of care that universities owe to their students and what recourse victims of on-campus sexual assaults may have against the institutions.</span></p>
<p><span style="font-size:14px;"><strong>Liability of universities</strong></span></p>
<p><span style="font-size:14px;">The university/college&ndash;student relationship does not, by itself, impute a duty upon the university/college to protect students from the actions of third parties.</span></p>
<p><span style="font-size:14px;">It is likely that a college or university will not be held liable when events are unpredictable or unforeseeable. However, if the college or university is aware or ought to have been aware of a student&rsquo;s propensity to commit indecent acts (such as sexual assaults, sexual harassment or bullying) and failed to stop it, they may be held liable for failing to protect other students from further acts by the perpetrator.</span></p>
<p><span style="font-size:14px;">Following the release of details in relation to how widespread the issue of sexual assaults and harassment at certain university colleges has been, it may be argued that where there is evidence to suggest that there was issue of sexual harassment and sexual assaults was a problem at a college, the college was therefore aware of the risk and had a duty to protect students from this risk.</span></p>
<p><span style="font-size:14px;">A former student who lived at John XXIII College (affiliated with the ANU but owned and operated by the Dominican Fathers) has stated that &lsquo;<a href="https://www.crikey.com.au/2011/03/24/s-xual-assault-harassment-plague-female-university-students/" target="_blank">&ldquo;John&rsquo;s&rdquo; is known among the students as a college that harbours a very misogynistic culture and one in which sexual assaults are allegedly commonplace.</a>&#39;</span></p>
<p><span style="font-size:14px;">If this statement is accepted as true, it could be argued that John XXIII College endorsed a culture where this type of behaviour (sexual harassment, sexual degradation of women students and sexual assaults) was acceptable. If it could further be argued that as the College created the culture and the danger, or at least allowed the culture to exist, a component of the duty of care they owe to students could be to protect them from this type of harm.</span></p>
<p><span style="font-size:14px;">In terms of proving the breach of the duty of care owed, relevant questions may include:</span></p>
<ul><li><span style="font-size:14px;">What policies did the college (if it is the college that owes the duty) have in place in relation to sexual harassment, sexual assaults, bullying, and discrimination?</span></li>
<li><span style="font-size:14px;">If there was a policy in place, did the institution follow these procedures and policies?</span></li>
<li><span style="font-size:14px;">Were staff trained adequately to respond to allegations of sexual assault/harassment and bullying?</span></li>
<li><span style="font-size:14px;">Were students aware of the policies and their rights?</span></li>
<li><span style="font-size:14px;">Were students aware of what they should do if they were subjected to such behaviour?</span></li>
<li><span style="font-size:14px;">Were students provided education in relation to what is acceptable and unacceptable behaviour? Were students aware of what constitutes proper consent?</span></li>
</ul>
<p>&nbsp;</p>
<p><span style="font-size:14px;">Also of relevance is how the university or college responds specifically to a person who has been sexually assaulted.</span></p>
<p><span style="font-size:14px;">How an organisation responds to a complaint of sexual assault can be critical in terms of the impact that it has on the victim. The response can minimise the psychological harm or, if the response is not appropriate, can lead to further psychological harm and damage.</span></p>
<p><span style="font-size:14px;">Some claims for injury arising from sexual assault in a university/college context attribute a greater proportion of the harm suffered to the university&rsquo;s/college&rsquo;s response to the assault than to the assault itself.</span></p>
<p><span style="font-size:14px;">Questions that are relevant in terms of any breach of duty of care by a college or university after a student has disclosed to them that they have been a victim of sexual assault may include:</span></p>
<ul><li><span style="font-size:14px;">Was the incident properly investigated?</span></li>
<li><span style="font-size:14px;">Was the matter referred to Police?</span></li>
<li><span style="font-size:14px;">Was the victim supported and provided with appropriate assistance, counselling and care?</span></li>
<li><span style="font-size:14px;">What action did the university take to ensure the victim suffered no further damage through contact with the perpetrator?</span></li>
<li><span style="font-size:14px;">Was the perpetrator appropriately dealt with by way of counselling, training or sanctions?</span></li>
<li><span style="font-size:14px;">Did the institution make comments or demonstrate actions that could be seen as blaming the victim for the assault?</span></li>
<li><span style="font-size:14px;">What damage or injury has been caused by the institution&rsquo;s response, as distinct from the actual assault?</span></li>
</ul>
<p><span style="font-size:14px;"><strong>The chance for universities to get things right now</strong></span></p>
<p><span style="font-size:14px;">Now that we know what a widespread and devastating impact sexual assaults and harassment is having in our universities and colleges, it is important that they act to not only provide assistance and redress for survivors of abuse, but also to acknowledge and change the culture where necessary to ensure that further abuse does not occur.</span></p>
<p><span style="font-size:14px;">I was heartened by<a href="http://www.smh.com.au/federal-politics/political-news/universities-spend-millions-preparing-for-wave-of-sexual-assault-reports-20170720-gxeu8p.html" target="_blank"> reports</a> that Australian universities are committing funding for counselling services for the many survivors of assaults on campus who are coming forward to tell their story and seek help. Universities need to offer adequate assistance to ensure that their students&rsquo; mental health is supported and treated with the same importance as a university degree.</span></p>
<p><span style="font-size:14px;">We also need to see institutions taking a hard-line stance on assaults, bullying and harassment that is causing devastating damage to so many of our young people. The culture in many of our universities needs to change. The only way that meaningful change will occur is by the universities accepting that there is a problem.</span></p>
<p><span style="font-size:14px;">The time to act is now. Acknowledge that there is a problem and commit to changing the culture. Our young people are depending on it.</span></p>
<p><span style="font-size:14px;">*This <em>Opinion </em>article has also been published on <a href="http://www.mamamia.com.au/campus-sexual-assault/" target="_blank">Mamamia</a>.</span></p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/450/f/Lisa Flynn - Shine Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 100px; height: 100px;" /><br />
<br />
Lisa Flynn </strong>is an ALA member and National Manager in Shine Lawyers&rsquo; Abuse Law Department.<span style="font-size:11px;">&nbsp;</span></p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<div><p><http: federal-politics="" political-news="" universities-spend-millions-preparing-for-wave-of-sexual-assault-reports-20170720-gxeu8p.html="" www.smh.com.au=""></http:></p>
</div>
https://www.lawyersalliance.com.au/opinion/some-traditions-need-to-change-students-and-sexual-abusehttps://www.lawyersalliance.com.au/opinion/some-traditions-need-to-change-students-and-sexual-abuseThu, 27 Jul 2017 00:00:00 +1000The path of destruction runs deep<p><span style="font-size:14px;">Queensland residents have certainly experienced their fair share of natural disasters. In March 2017, Cyclone Debbie carved a path of destruction and flooding along almost the entire coastline. Our experience with these types of disasters does help to mitigate the damage to an extent. For the most part, we know to stock up on bottled water, canned food and batteries, to keep off the roads, to heed the warnings and not to underestimate the awesome power of storms and floods, even days after the worst appears to have passed.</span></p>
<p><span style="font-size:14px;">Following these disasters, we see communities come together to offer their support to those in need and to rebuild their towns once again. There is a true sense of camaraderie borne of these shared experiences.</span></p>
<p><span style="font-size:14px;">However, once the initial response has passed, we can start to see some cracks appear. A flood can cast up a whole host of legal issues, including:</span></p>
<ul><li><span style="font-size:14px;">Employers and employees&rsquo; uncertainty as to leave with or without pay entitlements for those unable to get to work;</span></li>
<li><span style="font-size:14px;">Businesses and individuals taking advantage of others unable to get to work;</span></li>
<li><span style="font-size:14px;">Insurers drawing out the claims process to minimise the impact on their bottom line;</span></li>
<li><span style="font-size:14px;">Neighbours bringing claims against neighbours for building or landscaping works that may have increased the damage to neighbouring properties, or raising council complaints with the rebuild; and</span></li>
<li><span style="font-size:14px;">Residents being injured or property being damaged as a result of fallen trees and debris, potholes, newly exposed hazards and other changes to the landscape.</span></li>
</ul>
<p><span style="font-size:14px;">In the wake of the 2017 floods, it is important that we give consideration to all of these issues and how the law can provide clarity and security to those affected. It is also important, however, that people are aware of the law as it currently stands.</span></p>
<p><span style="font-size:14px;">As at the time of writing, there is no legal allowance made for natural disasters when it comes to going to work or fulfilling contractual obligations. If someone is unable to attend work due to a natural disaster, then their employer is not obliged to pay. If an important deadline is missed, with delivery of goods or a service, for example, then it can be deemed a breach of contract.</span></p>
<p><span style="font-size:14px;">Property insurance is governed by the individual insurance policy that was in place at the time of the disaster. Impacted policy holders will need to dig out that 100-page policy document that they may or may not have read when they first signed it. Any exclusions or exceptions, any conditions or limitations, any prerequisites or qualifiers will all apply, and will determine whether or not insurance will cover their losses.</span></p>
<p><span style="font-size:14px;">With regard to neighbourhood issues, council approval for any changes to the land or buildings is essential to help protect homeowners from factors that inadvertently increased the risk or damage to a neighbour.</span></p>
<p><span style="font-size:14px;">Finally, care needs to be taken when moving around hazards in impacted areas. Local councils are limited in their resources, which can delay their ability to assess the damage caused to roads, parks and footpaths and rectify same. For this reason, local councils are, for the most part, not liable for any property damage or injuries incurred as a result of natural disasters and the damage that remains. Extra diligence is required when navigating affected areas and councils should be notified of hazards so that they can address them before injuries occur.</span></p>
<p><span style="font-size:14px;">It is hoped that the law will resolve some of these difficulties in the near future for everyone&rsquo;s benefit. In the meantime, it is important that as a community we play fair, have compassion and look after each other.</span></p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/448/f/Michelle Wright - Shine Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 107px; height: 100px;" /></strong>Solicitor <strong>Michelle Wright </strong>has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women&rsquo;s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advice.</p>
<p><em>This article was originally published on Michelle&#39;s blog, <a href="https://picasenote.wordpress.com/2017/10/22/the-path-of-destruction-runs-deep/" target="_blank">P.I. Case Note</a>.</em></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong><span style="font-size:14px;">Learn about how you can get involved and contribute an article.&nbsp;</span></strong></a></p>
<p style="text-align: center;">&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/the-path-of-destruction-runs-deephttps://www.lawyersalliance.com.au/opinion/the-path-of-destruction-runs-deepThu, 20 Jul 2017 00:00:00 +1000The language of the law<p>A slip. A trip. A fall. To most people these words are interchangeable. They mean to stumble or to lose your footing. To the legal profession, however, they are three very different events.</p>
<p>Lawyers are very analytical and very specific in their use of terminology. They choose their terms carefully and interpret them precisely. While such precision may seem to be a curious and even humorous idiosyncrasy to the lay-person, it can have a devastating effect on those seeking access to justice.</p>
<p>The recent decision of his Honour Farr J in <a href="http://www.austlii.edu.au/au/cases/qld/QDC/2017/94.html" target="_blank"><em>McAllister v Brisbane City Council</em> [2017] QDC 94 </a>is a tragic demonstration of this issue. Mrs McAllister sustained a severe injury to her right leg in September 2012. She was spending a relaxed and playful morning at the local park with her daughter when, by some misfortune, she broke both her tibia and fibula while chasing after her daughter who had fallen into a lake. How this injury came to occur is a matter of conjecture.</p>
<p>Mrs McAllister told the 000 operator that she had tripped over a pavement, fallen and broken her ankle. The paramedic who attended to Mrs McAllister recorded in his report that she had tripped on a slight lip on the edge of the path, falling forward and landing left foot down in the lake. The nursing notes from Mrs McAllister&rsquo;s initial presentation at the hospital record that she heard a snap in her right leg as her right foot rolled over.</p>
<p>When she first consulted lawyers, Mrs McAllister said that her foot had struck the side of a post and her body lurched forward. During the course of the claim, Mrs McAllister told various experts that her foot became trapped between a post and the edge of the footpath.</p>
<p>To Mrs McAllister, these five descriptions were consistent with each other and detailed the same event. Any distinctions between them were &lsquo;a matter of semantics&rsquo;. To the Court, however, these descriptions were &lsquo;remarkably inconsistent&rsquo; and his Honour was not satisfied that Mrs McAllister had proven how her injury occurred. Her claim for compensation was unsuccessful. This decision was ultimately a result of the differences in the use and interpretation of the English language by the legal profession and the rest of society (unless Mrs McAllister had fabricated the whole thing, which seems unlikely).</p>
<p>The law as it is today has developed over centuries. As such, the language of the law contains terms and phrases that are not a part of everyday communication. Since the last decades of the 20<sup>th</sup> century, the legal profession has made a conscious effort to use plain English when writing contracts, advices and other documents, to bridge the gap between the lay community and the legal system. No efforts have been made, however, to address the issues of interpretation.</p>
<p>The purpose of the law is to provide order, security and peace to the community. What good is it, though, when the habits and values of the community are not reflected in the practice of the law?</p>
<p>Every member of the legal profession must take responsibility and try to ameliorate this flaw. Initially, lawyers must advise clients of the importance of being extremely particular and invest the time and attention required to obtain instructions that are accurate within the meaning of the law. While this approach might treat the symptoms, it will not resolve the illness. Instead, the entire profession must recognise the need to interpret words and phrases reasonably and, in general, to communicate in line with the rest of society.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/448/f/Michelle Wright - Shine Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 107px; height: 100px;" /></strong>Solicitor<strong> Michelle Wright </strong>has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women&rsquo;s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advice.<br />
<br />
<em>This article was originally published on Michelle&#39;s blog, <a href="https://picasenote.wordpress.com/2017/08/06/the-language-of-the-law/" target="_blank">P.I. Case Note</a></em>.</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/the-language-of-the-lawhttps://www.lawyersalliance.com.au/opinion/the-language-of-the-lawThu, 13 Jul 2017 00:00:00 +1000Thaiday, RE [2017]: A review of the Mental Health Court system<p>Ms Raina Thaiday was a mother of seven with no criminal history or history of psychiatric illness.</p>
<p>In the early hours of 19 December 2014, Mrs Thaiday killed her seven children and her niece at her Cairns home. The event shocked the nation and was reported as one of the worst mass murders in Australia&rsquo;s history. Mrs Thaiday was subsequently charged with eight counts of murder.</p>
<p>On 6 April 2017, the Queensland Mental Health Court accepted evidence of expert psychiatrists that:</p>
<p style="margin-left:36.0pt;">&lsquo;at the time of the killing, Mrs Thaiday was suffering from a mental illness, paranoid schizophrenia, and that she had no capacity to know what she was doing was wrong. In fact, to her way of thinking at that time, what she was doing was the best thing she could do for her children; she was trying to save them.&rsquo;<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p>
<p>The Mental Health Court accepted the defence of insanity had been established on the basis that at the time of the killings, Mrs Thaiday was of unsound mind. The criminal charges were discontinued.</p>
<p>This matter is a sad reminder of the devastating effects mental health issues can have on families and the community at large.</p>
<p>From a legal perspective, not many practitioners would have the opportunity to work in the Mental Health Court jurisdiction. A basic understanding of the Court&rsquo;s powers and functions is beneficial for all legal practitioners.</p>
<p>In Queensland, a referral to the Mental Health Court can be made by an alleged offender or their legal representatives, the Director of Public Prosecutions, the Director of Mental Health, the Attorney General or the District or Supreme Court. The Mental Health Court is constituted by a Supreme Court Judge who is assisted by two Court appointed psychiatrists. The primary role of the Court is to determine whether an alleged offender was of unsound mind when they committed an offence and whether they are fit for trial.</p>
<p>Once the Court has determined an alleged offender was either of unsound of mind or not fit for trial (permanently), the Court discontinues the criminal charges and has the option of placing the person under a forensic order. A forensic order must be made in circumstances where the Court considers a forensic order is necessary, because of the person&rsquo;s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.</p>
<p>A person subject to a forensic order can be compelled to receive treatment and care on an involuntary basis and can also be detained in an Authorised Mental Health Service. Persons subject to a forensic order are reviewed by the Mental Health Review Tribunal (MHRT) on a 6-month basis. The role of the MHRT is to hear evidence from the person subject to a forensic order and that person&rsquo;s treating team to determine if the conditions of the forensic order remain appropriate and what level of Limited Community Treatment is suitable given the individual&rsquo;s level of risk to themselves and the community.</p>
<p>There are no time limitations placed on the duration of a forensic order and such orders will remain in place as long as they are deemed necessary.</p>
<p>The Mental Health Court placed Mrs Thaiday on a forensic order which restricts her Limited Community Treatment to escorted leave on the grounds of The Park Centre for Mental Health high security unit where she is likely to remain for many years under specialist supervision for intensive treatment and care.</p>
<p>For more information on the Queensland Mental Health Court, visit the Queensland Court&#39;s website at <a href="http://www.courts.qld.gov.au/" target="_blank">http://www.courts.qld.gov.au/</a>.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/442/f/Robert Boal - QLD Bar pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 100px; height: 150px;" /><br />
<br />
Robert Boal </strong>is a barrister practicing at the Queensland Bar. He specialises in personal injury, employment and public law. Robert has appeared before the Mental Health Court and Mental Health Review Tribunal on behalf of the Queensland Attorney General.&nbsp;</p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<div><p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
<hr align="left" size="1" width="33%" />
<div id="ftn1"><p><a href="#_ftnref1" name="_ftn1" title="">[1]</a><em>Thaiday, Re</em>&nbsp;[2017] QMHC 001</p>
</div>
</div>
https://www.lawyersalliance.com.au/opinion/thaiday-re-2017-a-review-of-the-mental-health-court-systemhttps://www.lawyersalliance.com.au/opinion/thaiday-re-2017-a-review-of-the-mental-health-court-systemThu, 06 Jul 2017 00:00:00 +1000Linton Sayer v Melsteel in the Supreme Court of Victoria, June 2017<p><strong><span style="font-size:14px;">THE FACTS</span></strong></p>
<p><span style="font-size:14px;">The plaintiff had been in continuous employment since the age of 16. He commenced employment with the defendant, as a boilermaker, in 2006. As and from 2008, Mr Savage became his supervisor and problems started to occur. The following is a summary of the key events:</span></p>
<ul><li>January 2009: Co-workers taunted Mr Sayer. <span style="font-size:14px;">One said they would &ldquo;punch his f---ing face in&rdquo;. The plaintiff spoke to Mr Savage about these taunts. The plaintiff alleges that Mr Savage pushed him and said some words to him that were less than cordial. A claim for psychiatric injury, naming Mr Savage as the bully, was made and accepted. The plaintiff returned to work within four days. It is at this time that the plaintiff commenced consulting his GP about the bullying at work. The plaintiff continued to be supervised by Mr Savage.&nbsp;SayerJanuary 2009: Co-workers taunted Mr </span></li>
<li><span style="font-size:14px;">October 2009: A dispute occurred between the plaintiff and co-workers. The plaintiff complained to the OH&amp;S representative and expressed to him that he was feeling upset. A mediation was arranged. The plaintiff attended that meeting and was told to leave within five minutes.&nbsp;</span></li>
<li><span style="font-size:14px;">July 2010: The plaintiff&rsquo;s mobile phone was stolen and he was made to drive to a remote location and collect it from two co-workers who said they found it.&nbsp;</span></li>
<li><span style="font-size:14px;">August 2010: Mr Savage was upset at the plaintiff&rsquo;s alleged slow work pace. Mr Savage walked into the plaintiff&rsquo;s welding bay and allegedly struck him across the face three times. The plaintiff presented the next day at the doctors with a fat lip and neck pain. He made a WorkCover claim &ndash; liability was strenuously denied and then accepted at the doors of the Magistrates Court. &nbsp;Liability was accepted for his neck and psychiatric injury.</span></li>
</ul>
<p><span style="font-size:14px;">The plaintiff&rsquo;s employment was terminated in September 2010. The plaintiff made a Police report about the August 2010 assault and charges were laid against Mr Savage. These charges were subsequently dropped.&nbsp;</span></p>
<p><span style="font-size:14px;">Between 2010 and 2017 the plaintiff underwent six electroconvulsive therapy (ECT) treatments, neck surgery and, as and from 2010, was in regular contact with treating psychiatrists, psychologists and pain management physicians. The plaintiff has consistently admitted to frequent marijuana use. The plaintiff is prescribed a raft of strong medications in respect of both his psychiatric and psychological conditions. There is no history of a prior psychiatric injury.</span></p>
<p><strong><span style="font-size:14px;">THE TRIAL</span></strong></p>
<p><span style="font-size:14px;">A serious injury certificate was granted for pain and suffering and economic loss. The defendant made no offers. The plaintiff made a counter-offer of $400,000 plus keep. The matter was set down for hearing in May 2017 in the Supreme Court of Victoria with an estimated duration of 20 days.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">COUNSEL</span></strong></p>
<p><span style="font-size:14px;">Three days prior to the hearing I was informed by the QC that he would no longer take the brief, as it had too many difficulties. I then physically took myself to the chambers of three different QCs who said they would meet with me to hear me out as to why it was a winnable case &ndash; all three listened to me for varying periods of time and then rejected the brief. I then made more than ten calls to QCs begging them to take the brief. I received polite &ldquo;no&rdquo;s.&nbsp;</span></p>
<p><span style="font-size:14px;">Two days prior to the hearing, Mr Ron Meldrum QC said that he would take the brief on a No Win No Fee basis. Junior counsel was Mr Sascha Dawson.</span></p>
<p><strong><span style="font-size:14px;">THE PLAINTIFF&#39;S CASE</span></strong></p>
<ul><li><span style="font-size:14px;">As at 2009, the defendant was on notice of the plaintiff&rsquo;s psychiatric injury. It should have appreciated that there was a foreseeable risk of further psychiatric injury. By not taking any steps to address the workplace behaviour or remove the plaintiff from Mr Savage&rsquo;s supervision, the employer breached its duty of care to the plaintiff.&nbsp;</span></li>
<li><span style="font-size:14px;">Mr Savage was a bully and the defendant was vicariously liable for his actions.&nbsp;</span></li>
</ul>
<p><strong><span style="font-size:14px;">THE DEFENDANT&#39;S CASE</span></strong></p>
<ul><li><span style="font-size:14px;">There was no bullying. The plaintiff was never assaulted by Mr Savage &ndash; it simply did not happen. The plaintiff was fine after January 2009 and returned to work.&nbsp;</span></li>
<li><span style="font-size:14px;">It argued contributory negligence: it said that the plaintiff failed to notify the defendant of his injury and by his own aggressive behaviour, he was the bully. In its closing, the defendant abandoned its claim for contributory negligence.&nbsp;</span></li>
</ul>
<p><strong><span style="font-size:14px;">THE WITNESSES</span></strong></p>
<p><span style="font-size:14px;">The plaintiff called four lay witnesses (the mother, the neighbour, the friend who assisted him to keep a diary and the former co-worker who said he witnessed the assault and knew Mr Savage to be a bully).&nbsp;Three medical witnesses gave evidence for the plaintiff (the GP, the psychologist and Dr Middleton, a medico-legal occupational physician).&nbsp;</span></p>
<p><span style="font-size:14px;">The defendant called seven lay witnesses (two of the three directors of the company, Mr Savage and another supervisor, a former co-worker, the OH&amp;S consultant, an acquaintance said to have bumped into the plaintiff at the football).&nbsp;</span></p>
<p><span style="font-size:14px;">The defendant did not call any doctors and all medical reports were tendered.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">THE EVIDENCE</span></strong></p>
<p><span style="font-size:14px;">The plaintiff gave his evidence, for the most part, very well (perhaps I am a bit biased). Conversely, the defendant witnesses gave contradicting accounts of key events. The most startling evidence being from the OH&amp;S representative to whom the defendant said it delegated all staffing matters. The OH&amp;S representative gave evidence that he had never seen the 2009 claim. He also gave evidence that he had extensive notes of training delivered to the defendant but these were handwritten and that a robber had stolen all his handwritten diaries. The evidence from one of the directors was also a bit fun &ndash; he said that the plaintiff was so disliked that he caused six employees to resign from the company. The director could not recall the names of these employees. These employees had made no statements and did not give evidence in the trial.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">THE VERDICT</span></strong></p>
<p><span style="font-size:14px;">On the morning of day 23, the jury were sent out. They came back with their verdict on the afternoon of day 24.&nbsp;</span></p>
<p><span style="font-size:14px;">Damages in excess of $1 million were awarded: $230,000 for pain and suffering and $802,978.70 for economic loss (including super and interest).&nbsp;</span></p>
<p><span style="font-size:14px;">At the date of trial the plaintiff was 47 years of age.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">WHAT WAS A BIT DIFFERENT?&nbsp;</span></strong></p>
<p><span style="font-size:14px;">The plaintiff issued a tendency notice seeking to rely on the tendency evidence of a co-worker who said that Mr Savage also bullied him. The plaintiff also sought to rely on tendency evidence of a Dr Middleton who would say that he had previously worked with Mr Savage and knew him to be a bully.&nbsp;</span></p>
<p><span style="font-size:14px;">In an attack on the plaintiff&rsquo;s credibility, the defendant sought to tender print-outs of our client&rsquo;s online activities which allegedly showed him to enjoy scantily clad women and women in unusual states of dress. The plaintiff denied that he was the owner of these accounts. The defendant, mid-trial, obtained leave to serve a subpoena on Twitter and that was the last we heard of it. The presumption is that the accounts did not in fact belong to our client.&nbsp;</span></p>
<p><span style="font-size:14px;">The judge prepared written summaries of the evidence, with transcript references and a written summary of the law (his charge) which he provided to the jury in a documentary form and then presented in PowerPoint.&nbsp;</span></p>
<p><strong><span style="font-size:14px;">CLOSING THOUGHTS</span></strong></p>
<p><span style="font-size:14px;">This matter had to run as there were no offers. The biggest risk was that we would lose.&nbsp;</span></p>
<p><span style="font-size:14px;">If we lost, the plaintiff would have had it confirmed by the Court that the awful things that were done to and said about him were valid and condoned. Every day that the trial continued I became increasingly anxious about the outcome and how it would affect the client. I started to have regular conversations with the client about the possibility that we might lose. It was evident from those conversations that he could not emotionally cope with that outcome. I cried when the verdict was given; not because we had won but because we had not lost. I remain bewildered that this matter had to run and that our client, who has a very severe psychiatric injury, had to endure a five-week trial which his legal team only just endured.&nbsp;</span></p>
<p>&nbsp;</p>
<p><strong><span style="font-size:14px;"><img alt="" src="/sb_cache/blog/id/440/f/Naomi Riggs - Adviceline Injury Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 100px; height: 106px;" />Naomi Riggs</span></strong><span style="font-size:14px;"> is a Senior Associate at <a href="https://advicelineinjurylawyers.com.au/" target="_blank">Adviceline Injury Lawyers</a> and is an expert in personal injury with a particular focus on workers compensation, public liability, Comcare and employment law. Working in this area for nearly 10 years, Naomi is a passionate advocate for the rights of employees. She is an experienced litigator with a solid reputation for standing up for the rights of injured workers.</span></p>
<p><strong><span style="font-size:14px;">&nbsp;</span></strong><em><span style="font-size:11px;">The views and opinions expressed in these articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/linton-sayer-v-melsteel-in-the-supreme-court-of-victoria-june-2017https://www.lawyersalliance.com.au/opinion/linton-sayer-v-melsteel-in-the-supreme-court-of-victoria-june-2017Thu, 29 Jun 2017 00:00:00 +1000Medical Treatment Planning And Decisions Act 2016 (Vic)<p>New legislation will come into effect on 12 March 2018 that will repeal the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/mta1988168/" target="_blank"><em>Medical Treatment Act </em>1988 (Vic)</a>, and amend the <a href="http://www.austlii.edu.au/au/legis/vic/num_act/mha201426o2014174/" target="_blank"><em>Mental Health Act</em> 2014 (Vic)</a>. The new Act will allow people to give binding instructions or express preferences and values in relation to medical treatment that may be required in the future when they are no longer in a position to consent or refuse treatment. It will also allow people to nominate another person as a &lsquo;decision-maker&rsquo;, who will be able to make decisions if the nominator themselves lacks decision-making capacity.&nbsp;</p>
<p>Both adults and children can be held to have decision-making capacity as long as they can understand the information relevant to the decision, and also the consequences of the decision. It is also important to note that patients may be in possession of decision-making capacity for some decisions, but not others.&nbsp;</p>
<p>Instructional directives, which are express statements regarding consent or refusal of treatment, and values directives, which suggest overall preferences as to treatment options, can be made by those with decision-making capacity. However, doctors are not obliged to provide futile or non-beneficial treatment, regardless of any directives that exist.&nbsp;</p>
<p>Medical treatment decision-makers can be appointed if the appointor has decision-making capacity. More than one decision-maker can be appointed, and these decision-makers are required to make decisions on behalf of the appointor taking into account their values and preferences, and must make the decision that they reasonably believe the appointor would have made. Support persons can also be appointed, and their role is to represent the appointor, and to help the appointer make, communicate and give effect to medical treatment decisions.&nbsp;</p>
<p>Doctors have an obligation to locate directives or medical treatment decision-makers as far as reasonably possible, with an exception that applies to emergency situations. A contravention of the section that dictates that reasonable efforts must be made to locate either advance care directives or medical treatment decisions-makers will be considered unprofessional conduct. Doctors are also permitted to provide palliative care regardless of any advance care directives or decision by a medical treatment decision-maker. It is also important to note that the Act does not address physician-assisted dying.&nbsp;</p>
<p>Victorian and Civil Administrative Tribunal (VCAT) and the Public Advocate are the avenues for any disputes or contests in relation to decisions or directives made under the Act.&nbsp;The Act also deals with administering medical research procedures to those lacking decision-making capacity. The requirements for undertaking and detailing such procedures are located in the Act, and we encourage those who may encounter this to ensure that they are aware of their responsibilities.&nbsp;</p>
<p>This Act will encourage people to think about potential end-of-life planning, along with formalising instructions in advance. It allows the community to engage with and take responsibility for future medical decisions, and provides a structure and a system in which one can exercise autonomy in relation to potential medical decisions that are required.&nbsp;<br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/438/f/Catherine Sim - Adviceline Injury Lawyers pic.jpg" style="border-width: 1px; border-style: solid; margin: 1px 10px; float: left; width: 100px; height: 106px;" /></strong></p>
<p><br />
<strong>Catherine Sim </strong>is a Lawyer at <a href="https://advicelineinjurylawyers.com.au/" target="_blank">Adviceline Injury Lawyers</a> and is an expert in personal injury law, in particular the WorkCover system.&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in this article are the author&#39;s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong><span style="font-size:14px;">Learn about how you can get involved and contribute an article.&nbsp;</span></strong></a></p>
<p style="text-align: center;">&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/medical-treatment-planning-and-decisions-act-2016-vichttps://www.lawyersalliance.com.au/opinion/medical-treatment-planning-and-decisions-act-2016-vicThu, 22 Jun 2017 00:00:00 +1000TAC's new client app: MyTAC<p><span style="font-size:14px;">The Victorian Transport Accident Commission has produced an app specifically designed for people injured in transport accidents.</span></p>
<p><span style="font-size:14px;">After 3 July 2017, anyone injured in a transport accident who has lodged a claim will be able to download the app called &lsquo;MyTAC&rsquo; from the App Store.</span></p>
<p><span style="font-size:14px;">This innovation will allow injured people to be informed of the benefits and services available to them; it has long been a major flaw of the TAC system, that the injured are not told what help is available. This is a great step forward.</span></p>
<p><span style="font-size:14px;">The app will also allow claimants to send messages to the TAC and hopefully have their queries answered expeditiously. Likewise, the TAC can now send messages to their clients through this available line of communication.</span></p>
<p><span style="font-size:14px;">&nbsp;significant and extremely useful feature of the &lsquo;MyTAC&rsquo; app is that injured people will have the ability to lodge documents by submitting a photo of a certificate, or filling in a form on the app.&nbsp;</span></p>
<p><span style="font-size:14px;">Things have come a long way from the time when TAC wouldn&rsquo;t accept a faxed form!<br />
Under this new system, all-important incapacity certificates should never again be lost and payments should not be interrupted. Combined with the new <a href="https://www.lawyersalliance.com.au/opinion/tacs-new-rapid-payment-scheme" target="_blank">&lsquo;Red Lantern&rsquo; payment system</a> for service providers, posting in documents to the Victorian Transport Accident Commission will soon become a thing of the past.</span></p>
<p><em><span style="font-size:14px;">A version of this article was published by Adviceline Injury Lawyers on 6 June 2017.</span></em></p>
<p><span style="font-size:14px;"><img alt="" src="/sb_cache/blog/id/436/f/Michael_Lombard_01_KH_120524.jpg" style="border-width: 1px; border-style: solid; margin: 1px 10px; float: left; width: 100px; height: 125px;" /></span><strong><span style="font-size:14px;">Michael Lombard </span></strong><span style="font-size:14px;">is the Partner in charge of the traffic accident division at <a href="https://advicelineinjurylawyers.com.au/2017/05/04/tacs-new-rapid-payment-scheme/" target="_blank">Adviceline Injury Lawyers</a>.<strong><span style="font-size:14px;"> </span></strong>He is a Law Institute of Victoria Accredited Personal Injury Specialist and qualified mediator. Michael is the author of numerous books, articles and papers relating to Victorian motor and traffic law for the general public, health professionals and lawyers.</span></p>
<p>&nbsp;</p>
<p><span style="font-size:14px;">&nbsp;</span><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong><span style="font-size:14px;">Learn about how you can get involved and contribute an article.&nbsp;</span></strong></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/tacs-new-client-app-mytachttps://www.lawyersalliance.com.au/opinion/tacs-new-client-app-mytacThu, 15 Jun 2017 00:00:00 +1000Connellan v Murphy [2017] VSCA 116<p><span style="font-size:14px;">In 2015, one of the biggest litigation hurdles faced by survivors of child abuse in Victoria was removed by the passage of the <a href="http://www.austlii.edu.au/au/legis/vic/num_act/loaaaa20159o2015426/" target="_blank"><em>Limitations of Actions Amendment (Child Abuse) Act</em> 2015 (Vic)</a> (the Act), which amended the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/loaa1958226/" target="_blank"><em>Limitation of Actions Act</em> 1958 (Vic)</a>. The Act removed previously restrictive limitation periods that applied to actions relating to death or personal injury resulting from child abuse. The amendments acknowledged the significant difficulties survivors face in pursuing claims for childhood abuse, as highlighted by both the 2013 findings of the Victorian Government&rsquo;s Inquiry into the Handling of Child Abuse by Religious and Other Organisations and the current federal Royal Commission into Institutional Responses to Child Sexual Abuse. However, by virtue of the introduction of <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/loaa1958226/s27r.html" target="_blank">s27R </a>of the Act, a court&rsquo;s power to summarily dismiss or permanently stay proceedings was expressly preserved.</span></p>
<p><span style="font-size:14px;">On 22 May 2017, the Supreme Court of Victoria&rsquo;s Court of Appeal invoked <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/loaa1958226/s27r.html" target="_blank">s27R </a>to permanently stay proceedings relating to the alleged sexual assault of a minor in 1968 for the first time. The decision in <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2017/116.html"><em>Connellan v Murphy</em> [2017] VSCA 116</a> is one that is cause for concern for survivors of abuse.</span></p>
<p><span style="font-size:14px;">In 2016, the plaintiff, Marita Murphy, brought a claim against John Connellan, alleging that he raped her when they were both minors while she stayed with his family for a period of about seven to ten days following the death of her father. The plaintiff also alleged that she was molested by Eugene, an Aboriginal boy who was also staying with the family, but did not issue proceedings against him. The plaintiff provided details of where the alleged rapes occurred within the family home but was unable to clarify the circumstances under which she came to stay with the family. There does not appear to have been evidence that the arrangement was institutional in nature, for example, the placement does not appear to have been arranged by the Department of Health and Human Services.&nbsp;</span></p>
<p><span style="font-size:14px;">The defendant denied the allegations and further denied having ever met the plaintiff as a child. The defendant&rsquo;s brother, who was alleged to have witnessed the sexual assault of the plaintiff, also denied knowing the plaintiff or that the assaults occurred. The plaintiff&rsquo;s sister gave evidence that she was aware of the plaintiff being placed with the defendant&rsquo;s family.&nbsp;</span></p>
<p><span style="font-size:14px;">A police investigation of the plaintiff&rsquo;s allegations identified Eugene Samuel Lovett as possibly being the Eugene referred to by the plaintiff. The police investigation also noted that other witnesses were now deceased.&nbsp;</span></p>
<p><span style="font-size:14px;">The defendant made an application to permanently stay proceedings on the grounds that allowing proceedings was an abuse of process and that the delay had left him irretrievably prejudiced. In making the application, the defendant referred to well-known authorities including <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2006/27.html"><em>Batistatos v Roads and Traffic Authority of News South Wales&nbsp;</em></a></span><a href="http://www.austlii.edu.au/au/cases/cth/HCA/2006/27.html">[2006] HCA 27; (2006) 226 CLR 256</a><span style="font-size:14px;">, and questioned the reliability of the plaintiff as a witness, pointing specifically to inconsistencies in the plaintiff&rsquo;s evidence.</span></p>
<p><span style="font-size:14px;">The defendant also claimed erosion of evidence due to the significant lapse of time since the alleged events, including an inability to call and cross-examine potential witnesses, in particular his parents and the plaintiff&rsquo;s parents, who may have been able to give evidence about the care arrangement, and documentation relating to the plaintiff&rsquo;s placement with the Connellan family, which was no longer accessible.</span></p>
<p><span style="font-size:14px;">At first instance, the primary judge refused the permanent stay application, noting that although the defendant had suffered general prejudice, the Act&rsquo;s passage was specifically intended to recognise the difficulties faced by survivors of abuse in bringing claims at an earlier time, and to provide them with greater access to justice. The primary judge rejected the defendant&#39;s submission that it was sufficient reason to stay proceedings that the conduct of proceedings by a defendant was rendered more complicated and difficult by the lapse of time. In reaching her conclusion, the primary judge noted that all persons alleged to have been present at the time of the alleged assault were still alive and their evidence could be tested by both sides. Importantly, she noted that any perceived inconsistencies in the plaintiff&rsquo;s evidence could also be tested by her viva voce evidence.</span></p>
<p><span style="font-size:14px;">On 22 May 2017, the Court of Appeal held that the primary judge&rsquo;s approach was too narrow, allowed the defendant&rsquo;s appeal, and set aside the primary judge&rsquo;s ruling, ordering a permanent stay of proceedings. Given that the defendant was 13 years old at the time of the alleged offence, almost 50 years ago, it held that the &lsquo;burdensome and oppressive&rsquo; task expected of the defendant in defending himself was rendered more oppressive as neither side was in a position to make proper investigations of relevant surrounding circumstances and by the &lsquo;vagueness of the plaintiff&rsquo;s own recollection&rsquo;. The Court of Appeal found that:</span></p>
<p><em><span style="font-size:14px;">&lsquo;&hellip;A trial of the plaintiff&rsquo;s allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon&hellip;&rsquo;</span></em></p>
<p><span style="font-size:14px;">The Court of Appeal also considered the effect that the lapse of time would have on those giving evidence, including the defendant and his brother. Further, it acknowledged the lack of clarity as to whether Eugene had been properly identified and that those who were adults at the time of the alleged abuse and therefore may have been able to provide more clarity were not alive to give such evidence. In addition, it was held that the plaintiff appeared to have mistaken the defendant&rsquo;s identity, confusing the two Connellan brothers in respect of one of the alleged assaults. The Court also noted that the defendant&rsquo;s childhood home, in which the plaintiff alleged the abuse took place, had been demolished and therefore the plaintiff&rsquo;s evidence could not be properly tested.</span></p>
<p><span style="font-size:14px;">Further issues involving causation and quantum were also held to have been rendered more difficult by the passage of time, including the plaintiff&rsquo;s assertion that she had and continued to suffer a chronic post traumatic stress disorder as a result of the alleged abuse. The Court of Appeal stated that the investigation of how and when the condition commenced and developed and its potential causes were now largely, if not wholly, precluded and that the history as provided by the plaintiff could only be her subjective recollection of events.</span></p>
<p><span style="font-size:14px;">As the Royal Commission has found, it is not uncommon for plaintiffs to issue proceedings decades after the fact for various legitimate and understandable reasons. The facts and circumstances of<em>&nbsp;Connellan&nbsp;v Murphy</em>&nbsp;are not particularly unusual in this respect. There is clearly a need for <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/loaa1958226/s27r.html" target="_blank">s27R</a> to be invoked at times, and proceedings dismissed or stayed in cases where the delay in issuing proceedings is so serious and burdensome on defendants as to prevent the possibility of a fair trial. However, it would be concerning if the same restrictive approach adopted by the Court of Appeal was followed in future cases and used as a method of circumventing the abolition of the limitation periods and the very injustice it was introduced to prevent.</span></p>
<p><span style="font-size:14px;">In reaching its decision, the Court of Appeal noted the &lsquo;exceptional circumstances of the specific facts&rsquo; of the case, including that the alleged abuse was between children, with attendant evidentiary issues. The Court may well have refused a permanent stay application had the alleged abuse been by a defendant identified with greater certainty and/or an adult perpetrator. Although the Court of Appeal canvassed the intrinsic problems in responding to historical allegations of abuse involving children, it would be of significant concern were the decision to lead to an increase in defendants attempting to stay proceedings simply on this basis.&nbsp;</span></p>
<p><span style="font-size:14px;">The Court of Appeal may also have reached a different conclusion had there not been as many inconsistencies in the plaintiff&rsquo;s evidence. While human memory is clearly fallible, and memory may deteriorate with the passage of time, it is not clear from the decision that the inconsistencies identified in the plaintiff&rsquo;s allegations were due to the &lsquo;substantial lapse of time&rsquo;. The Court of Appeal placed particular emphasis on the inconsistencies in the plaintiff&rsquo;s evidence.</span></p>
<p><span style="font-size:14px;">It is also worth noting the short length of the plaintiff&rsquo;s alleged placement with the defendant&rsquo;s family and the effect this may have had on her recollection of certain matters, as opposed to survivors who allege abuse over a lengthier period of time.</span></p>
<p><span style="font-size:14px;">As stated above, it appears that there was no institutional element in the plaintiff&rsquo;s placement with the defendant&rsquo;s family. There may also have been a different conclusion had the abuse occurred in an institutional context where significantly more records are likely to exist and potentially more witnesses available to corroborate the particular abuse and/or its systemic nature, despite the passage of decades. It should also be noted that the erosion of evidence also causes survivors of abuse to face greater difficulties in proving their cases, for example, without the benefit of records or well maintained records corroborating their institutional placements and/or the abuse, but that this could ultimately be a factor considered at trial as defendants are also burdened by the same disadvantage.&nbsp;</span></p>
<p><span style="font-size:14px;">The basis on which the recommendation to abolish the statute of limitations for personal injuries resulting from child abuse was made should also be considered. In its final report, <em>Betrayal of Trust</em>, the Family and Community Development Committee (a&nbsp;joint investigatory committee of the Parliament of Victoria)&nbsp;considered the public policy justifications for limitation periods. In particular, they considered that by virtue of the passage of time, relevant evidence was likely to be lost and the concern that it could be considered oppressive to a defendant to allow an action to be brought long after the circumstances to which it gave rise. However, the Committee ultimately noted the life-long consequences of the abuse to survivors and considered this outweighed the public benefit of giving certainty to defendants by way of a limitation period. &nbsp;Given these considerations and findings by the Committee, the narrow interpretation taken by the Court of Appeal is disappointing.</span></p>
<p><span style="font-size:14px;">This is the first case to test <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/loaa1958226/s27r.html" target="_blank">s27R</a> and future interpretations will considerably affect survivors&rsquo; access to justice. Despite noting that the defendant bears a heavy onus to justify the grant of a stay, it is of concern that the Court of Appeal appears to have adopted a narrow interpretation of the section, as opposed to the purposive construction by the court at first instance.&nbsp;</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/432/f/Amy Olver.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 100px; height: 142px;" /></strong></span><br />
<br />
<span style="font-size:14px;"><strong>Amy Olver </strong>is an Associate at <a href="http://rctlaw.com.au/" target="_blank">Ryan Carlisle Thomas Lawyers</a>, Dandenong.<strong> </strong>Her expertise is in personal injury matters with a strong focus on institutional and sexual abuse.</span></p>
<p style="text-align: right;">&nbsp;</p>
<p>&nbsp;</p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/434/f/Penny Savidis.jpg" style="border-width: 1px; border-style: solid; margin: 0px 10px; float: left; width: 100px; height: 128px;" /><br />
Penny Savidis </strong>is a Partner at&nbsp;<a href="https://rctlaw.com.au/" target="_blank">Ryan Carlisle Thomas Lawyers</a>, Melbourne. She is head of the Institutional Abuse Department and also has experience in the areas of employment law and superannuation claims.<strong>&nbsp;</strong></span></p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><span style="font-size:14px;"><strong>Learn how you can get involved and contribute an article.&nbsp;</strong></span></a></p>
https://www.lawyersalliance.com.au/opinion/connellan-v-murphy-2017-vsca-116https://www.lawyersalliance.com.au/opinion/connellan-v-murphy-2017-vsca-116Thu, 08 Jun 2017 00:00:00 +1000How to protect your client's TPD money<p><span style="font-size:14px;">Once your client&rsquo;s Total and Permanent Disability (TPD) super claim has been accepted and paid into their super account, they will probably withdraw their entire balance. This may result in the member paying thousands of dollars in tax unnecessarily.</span></p>
<p><span style="font-size:14px;">There are simple strategies that can be implemented to make the most of any TPD claim, particularly minimising tax payments and maximising other benefit entitlements.</span></p>
<p><span style="font-size:14px;">For example, if a member&rsquo;s TPD and superannuation balance is as low as $50,000, they will pay a lump sum withdrawal tax on average of approximately $5,000, which potentially could be eliminated by applying the right strategies.</span></p>
<p><strong><span style="font-size:14px;">TPD THROUGH SUPERANNUATION&nbsp;</span></strong></p>
<p><span style="font-size:14px;">When a group TPD insurance claim is approved, the sum insured is usually paid into the member&rsquo;s superannuation account, giving them the choice to:</span></p>
<ol><li>withdraw the entire balance;</li>
<li><span style="font-size:14px;">make a partial withdrawal and leave the balance in super;</span></li>
<li><span style="font-size:14px;">commence an income stream (with all, or a portion of, their balance); or</span></li>
<li><span style="font-size:14px;">leave the entire balance in super.</span></li>
</ol>
<p><span style="font-size:14px;">Each option will lead to very different tax and Centrelink outcomes. In taking option 1 or 2, the claimant will pay &lsquo;superannuation lump sum withdrawal tax&rsquo;. Under option 3, the taxable component of the annual income drawn will be taxable at the claimant&rsquo;s marginal tax rate, with a 15% tax offset.</span></p>
<p><strong><span style="font-size:14px;">LUMP SUM WITHDRAWAL FROM SUPER&nbsp;</span></strong></p>
<p><span style="font-size:14px;">Under options 1 and 2 above, when superannuation is withdrawn before a member reaches preservation age (between 56 and 60), they pay superannuation lump sum withdrawal tax on the &lsquo;taxable component&rsquo; at a rate of 22% (based on tax and Medicare rates during the 2016-17 financial year).</span></p>
<p><span style="font-size:14px;">When a person is withdrawing super funds under the &lsquo;permanent incapacity&rsquo; condition of release, the superannuation trustee completes a calculation to reduce the amount of tax the member will pay, called a &lsquo;tax-free uplift&rsquo; calculation.</span></p>
<p><span style="font-size:14px;">This calculation is different for everyone, and if a person has multiple funds, the calculation will be different for each superannuation fund they make a withdrawal from.</span></p>
<p><span style="font-size:14px;">If the member has minimal or no other taxable income for the financial year then they may be entitled to a partial tax refund. This can mean deferring a portion of the withdrawal to a later financial year and lead to significant tax savings.</span></p>
<p><span style="font-size:14px;">TPD insurance claimants need to be vigilant when consolidating superannuation funds. Rolling over a super fund into another fund (even if it is only $100) may change the &lsquo;eligible service date&rsquo; of the member&rsquo;s superannuation fund and thus mean that the member pays a higher lump sum withdrawal tax rate. Advise caution if your clients are considering consolidating super funds!</span></p>
<p><strong><span style="font-size:14px;">COMMENCING AN INCOME STREAM OR ACCOUNT-BASED PENSION&nbsp;</span></strong></p>
<p><span style="font-size:14px;">Under option 3 above, the member has the option to start an income stream with a portion of their entire superannuation fund.</span></p>
<p><span style="font-size:14px;">Usually, at retirement a superannuation member will convert their superannuation account into an income stream known as an account-based pension or allocated pension. Members who meet the TPD definition have the same ability to commence a superannuation income stream. However, the income drawn is taxable if the member is under age 60. This means that the member pays PAYG tax on the income drawn on the taxable component of the income stream with a 15% tax offset.</span></p>
<p><span style="font-size:14px;">Assuming the member has no other assessable income, this option may mean that the member can draw a significant income (either monthly, quarterly or annually) and pay minimal or no tax.</span></p>
<p><strong><span style="font-size:14px;">CENTRELINK</span></strong></p>
<p><span style="font-size:14px;">Different Centrelink benefits will apply different means testing. If you make a lump sum superannuation withdrawal, this is not treated as income under the Centrelink income test for certain pension payments (for example, the Disability Support Pension).</span></p>
<p><span style="font-size:14px;">However, the taxable component of a super withdrawal is included in a person&rsquo;s &lsquo;adjusted taxable income&rsquo;. This may affect a member&rsquo;s Family Tax Benefits and certain other payments.&nbsp;</span></p>
<p><span style="font-size:14px;">Superannuation is exempt from Centrelink means testing while a person is under their Age Pension Age (between age 65 and 67). Commencing an income stream will mean the account balance will become assessable under Centrelink&rsquo;s assets test and the balance will be deemed for income test purposes (Centrelink apply a &lsquo;deeming calculation&rsquo; to financial assets to work out the income attributed to the asset under the income test).&nbsp;</span></p>
<p><span style="font-size:14px;">It is important for insurance claimants to be aware of any impacts to their Centrelink benefits before making any decisions on what to do with their super and insurance.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/430/f/Andrew Reynolds.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 107px; height: 107px;" /></strong></span></p>
<p><br />
<span style="font-size:14px;"><strong>Andrew Reynolds </strong>is an ALA member and a Certified Financial Planner.<br />
&nbsp;</span></p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><span style="font-size:14px;"><strong>Learn about how you can get involved and contribute an article.</strong></span></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/how-to-protect-your-clients-tpd-moneyhttps://www.lawyersalliance.com.au/opinion/how-to-protect-your-clients-tpd-moneyThu, 11 May 2017 00:00:00 +1000TAC’s new rapid payment scheme<p><span style="font-size:14px;">A most welcome and far-sighted scheme is about to be rolled-out by Victoria&rsquo;s Transport Accident Commission (TAC).</span></p>
<p><span style="font-size:14px;">A new software program designed to provide speedy processing of accounts will be adopted by the TAC. Initially applying to GPs, physiotherapists and pharmacists, the software program will be installed on the health professional&rsquo;s computer system so that when a TAC claimant has been treated, an account can be sent directly to a central processor for assessment and payment. It is envisaged by the TAC that payments should be processed overnight.</span></p>
<p><span style="font-size:14px;">This is certain to be of great help to the injured. Over the last 30 years of the scheme, surgeons, specialists and many health professionals have increasingly said they want nothing to do with the TAC and refused treatment of TAC claimants. They have expressed annoyance at the red tape and extensive delays preventing appropriate and expeditious payment. In many cases, the injured have had to shop around to find a practitioner who would assist with their rehabilitation. Not only did this restrict the choice for the injured, it also meant that vitally important rehabilitation was either delayed or not started at all.</span></p>
<p><span style="font-size:14px;">Once the process is up and running, the claimant will only have to provide their claim number to the clinic, who will enter it in the &lsquo;Red Lantern&rsquo; system together with the details of service and fee. This will be recognised by the system and the payment approved if the claim number is valid, the provider is registered and the service falls within the anticipated treatment parameters.</span></p>
<p><span style="font-size:14px;">The TAC will have contained within the system an analysis of the category into which the claimant is considered, which will remove the need for a person to approve the payment, save for exceptional circumstances or unusual entries.</span></p>
<p><span style="font-size:14px;">It is anticipated that the system will be able to be used by other providers of services in the coming years. It is a huge step forward for the injured and will make the TAC scheme a leader in social insurance.</span></p>
<p><span style="font-size:14px;"><em>A version of <a href="https://advicelineinjurylawyers.com.au/2017/05/04/tacs-new-rapid-payment-scheme/">this article</a> was published by Adviceline Injury Lawyers on 4 May 2017.</em></span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/428/f/Michael_Lombard_01_KH_120524.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 125px;" /><br />
Michael Lombard</strong> is the Partner in charge of the traffic accident division at <a href="https://advicelineinjurylawyers.com.au/2017/05/04/tacs-new-rapid-payment-scheme/" target="_blank">Adviceline Injury Lawyers</a>. He is a Law Institute of Victoria Accredited Personal Injury Specialist and qualified mediator. Michael is the author of numerous books, articles and papers relating to Victorian motor and traffic law for the general public, health professionals and lawyers.</span></p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><span style="font-size:14px;"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></span></a></p>
<p style="text-align: center;">&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/tacs-new-rapid-payment-schemehttps://www.lawyersalliance.com.au/opinion/tacs-new-rapid-payment-schemeThu, 04 May 2017 00:00:00 +1000‘Special Financial Assistance’ for Victorian victims halved<p><span style="font-size:14px;">Between 1988 and 1996, a victim of crime in Victoria could access up to $20,000 in Special Financial Assistance from a government scheme. Today, the Victims of Crime Assistance Tribunal (VOCAT) can only offer victims of the worst crimes, with the worst outcomes, up to $10,000 for any grief, distress, trauma or injury. Special Financial Assistance is described as &lsquo;a symbolic expression by the State of the community&rsquo;s sympathy&rsquo; and in the worst circumstances $10,000 is an insult. Clearly, we need to rethink how our community responds to injustices and suffering.</span></p>
<p><span style="font-size:14px;">Victims of acts of violence which occur in Victoria can apply to VOCAT for assistance. The assistance provided by VOCAT helps victims recover from the effects of violent crimes. This is particularly important for victims who cannot obtain compensation directly from offenders or in cases where police do not have enough evidence to prosecute the offender.</span></p>
<p><span style="font-size:14px;">Victims of crime can seek reimbursement of clothing which was lost or damaged, lost earnings, and medical expenses. In most cases they can also access counselling. In exceptional circumstances, safety-related expenses or expenses which are incurred to assist recovery may be paid. All of these expenses are subject to restrictions and the total financial assistance available for these expenses is $60,000.</span></p>
<p><span style="font-size:14px;">Special Financial Assistance is only available to victims who have suffered significant adverse effects. It is a condolence. For this reason, it is acceptable that the amount available will not fully compensate a victim for their suffering. What is not acceptable, however, is that the maximum amount which can be awarded has been reduced and not fully re-instated.</span></p>
<p><span style="font-size:14px;">In 1973 the Crimes Compensation Tribunal was formed to deliver assistance to victims.&nbsp; It operated under the <em>Criminal Injuries Compensation Act </em>1972 (Vic). The maximum Special Financial Assistance available was $3,000, and thereafter increased incrementally. Between 28 October 1981 and 1984 the maximum was $10,000. This is the same maximum amount available today. When the <em>Criminal Injuries Compensation Act</em> 1983 (Vic) commenced on 21 March 1984 the maximum dropped to $7,500.</span></p>
<p><span style="font-size:14px;">In 1987 when the Parliamentary Legal and Constitutional Committee was considering whether this amount should increase, it commented that &lsquo;$7,500 &hellip; is woefully inadequate&rsquo;.&nbsp; Between the end of 1988 and the end of 1996, victims who had suffered significant adverse effects could be awarded $20,000 in Special Financial Assistance.</span></p>
<p><span style="font-size:14px;">The <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/vocaa1996271/" target="_blank"><em>Victims of Crime Assistance Act </em>1996 (Vic)</a> commenced on 1 July 1997 and there was no allowance for Special Financial Assistance. From 1 January 2000, up to $7,500 became available. Almost ten years ago, on 1 July 2007, this was increased to $10,000 &ndash; half the historical high. The amount has not increased in ten years, amounting to further reductions in real terms.</span></p>
<p><span style="font-size:14px;">Victorians are relatively lucky to have a scheme which reimburses victims for financial losses. However, Special Financial Assistance is a response to intangible losses; distress, emotional turmoil, and suffering. Special Financial Assistance of $10,000 in the worst conceivable cases is a &lsquo;drop into a dry well&rsquo;. Victoria needs to do better. When people become victims due to violent members of our community, they should not also become victims of an insult by a government scheme.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/426/f/Sarah Thorn.png.jpg" style="width: 125px; height: 133px; border-width: 1px; border-style: solid; margin: 3px; float: left;" /></strong></span></p>
<p><br />
<span style="font-size:14px;"><strong>Sarah Thorn</strong> is a Lawyer at <a href="http://advicelineinjurylawyers.com.au/" target="_blank">Adviceline Injury Lawyers</a> and is an expert in traffic accidents, public liability and victims of crime.&nbsp;</span></p>
<p><br />
&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><span style="font-size:14px;"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></span></a></p>
<p style="text-align: center;">&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/special-financial-assistance-for-victorian-victims-halvedhttps://www.lawyersalliance.com.au/opinion/special-financial-assistance-for-victorian-victims-halvedThu, 20 Apr 2017 00:00:00 +1000Melbourne wall collapse: compensation under the Sentencing Act<p>Recent compensation settlements involving the families of pedestrians killed by a wall collapse highlight a rarely used avenue of compensation: claims under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Act</em> 1991 (Vic) </a>(<em>Sentencing Act</em>).</p>
<p><strong>Background</strong><br />
On 28 March 2013, a 15-metre-high wall on a building site on Swanston Street in Melbourne collapsed, killing three pedestrians. The site where the collapse occurred was controlled by the construction company Grocon. WorkSafe Victoria brought a civil prosecution against Grocon and another company with breaching workplace safety laws in relation to the incident. In 2014, Grocon pleaded guilty to the charge in the Magistrates&rsquo; Court and was ordered to pay a $250,000 fine.</p>
<p>Family members of those killed then made applications for compensation under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Act</em></a> for their pain and suffering and counselling/medical expenses. Shortly before the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Ac</em>t</a> claims were to be heard by the Magistrates&rsquo; Court, Grocon settled with the claimants on confidential terms.</p>
<p><em><strong>Sentencing Act </strong></em><strong>vs </strong><em><strong>Wrongs Act</strong></em><br />
Australian law does not recognise claims for wrongful death &ndash; that is, compensation claims brought by the kin of the deceased for the death itself. Instead, family and friends of the deceased may bring claims arising from their own psychological/psychiatric injury flowing from the wrongful death of their loved ones.</p>
<p>In Victoria, this type of claim is typically brought under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/" target="_blank"><em>Wrongs Act</em> 1958 (Vic) </a>(<em>Wrongs Act</em>). In order to succeed under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/" target="_blank"><em>Wrongs Act</em></a>, the claimant must establish that:</p>
<ul><li>they have sustained a &lsquo;significant injury&rsquo; within the meaning of the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/" target="_blank"><em>Wrongs Act,</em></a> being a whole person psychiatric impairment of greater than 10%; and</li>
<li>the defendant was negligent in causing the death of the claimant&rsquo;s loved one.</li>
</ul>
<p>These elements can be difficult to establish and may require protracted, expensive and stressful litigation.</p>
<p>By contrast, claims under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Ac</em>t</a> are designed to provide a quick, efficient and cheap means of providing compensation. Within 12 months of the of the wrongdoer being convicted of an offence, any person who has suffered loss or injury as a direct result of the offence can seek restitution and compensation orders from the court. This compensation is non-punitive and has no bearing on the sentence imposed for the offence.</p>
<p>Under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Act</em></a>, there is no need for the claimant to establish that they have sustained &lsquo;significant injury&rsquo;. The liability of the defendant for the incident giving rise to the psychiatric injury &ndash; that is, the injury which caused the death of the claimant&rsquo;s loved one &ndash; will ordinarily have already been established via the preceding prosecution.</p>
<p>It should be noted, however, that the practical ability of the defendant to pay compensation under a <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Act</em> </a>claim remains an issue, just as it does under the <em><a href="http://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/" target="_blank">Wrongs Act</a>.</em> Unless the wrongdoer is insured or has significant assets, it will likely be difficult for the claimant to actually obtain compensation.</p>
<p>Further, if the claimant has already received compensation from the Victims of Crime Assistance Tribunal (VOCAT), this amount is deducted from the award under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Act</em></a>. Pursuing compensation under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Act</em></a> does not prevent a claimant from separately pursuing compensation under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/" target="_blank"><em>Wrongs Act</em></a>.</p>
<p>Particularly in circumstances where the wrongdoer is insured, as was the case in the Grocon matter, making a claim under the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/" target="_blank"><em>Sentencing Act</em></a> in place of, or in addition to, a <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/" target="_blank"><em>Wrongs Act</em></a> claim is worthy of consideration.</p>
<p><strong>David Schwartz</strong> is a Senior Associate at <a href="https://advicelineinjurylawyers.com.au/" target="_blank">Adviceline Injury Lawyers</a>. He specialises in common law and statutory benefits claims for injured workers.<strong>&nbsp;</strong></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p>&nbsp;</p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn&nbsp;how you can get involved and contribute an article. </strong></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/melbourne-wall-collapse-compensation-under-the-sentencing-acthttps://www.lawyersalliance.com.au/opinion/melbourne-wall-collapse-compensation-under-the-sentencing-actThu, 13 Apr 2017 00:00:00 +1000Workers compensation and human rights<p>Since the enactment of the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cohrara2006433/" target="_blank"><em>Charter of Human Rights and Responsibilities </em>(<em>Charter</em>)</a> in 2006, it has been necessary for Victorian legislation to be compatible with the 20 basic human rights set out in the Charter. One of these rights, particularly relevant to the field of personal injury, is the right to recognition and equality before the law. This right holds that everyone is entitled to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.</p>
<p>Under the Charter, human rights may be limited by Parliament. However, such limitations must be necessary and reasonable, and there must be clear reasons for the decision.</p>
<p>When a Member of Parliament introduces a Bill, they must provide a statement of compatibility to the effect that they believe the bill is compatible with the rights set out in the Charter. If the bill contains any provisions that limit Charter rights, the Member should set out the nature and extent of the incompatibility and explain clearly why the incompatibility is reasonable and necessary.</p>
<p>In the area of workers&#39; compensation, discrimination is apparent in both the treatment of psychiatric injuries and the entitlements of older workers.</p>
<p>In order to obtain an impairment benefit for pain and suffering, a worker with a musculoskeletal injury must be assessed as having at least a 5% whole-person impairment (WPI). By contrast, a worker with a psychiatric injury must be assessed as having at least a 30% WPI to obtain compensation.</p>
<p>In justifying this discriminatory provision to Parliament, the responsible Minister referred to the need to maintain the scheme&rsquo;s integrity and economic viability. By &lsquo;integrity&rsquo;, the Minister was presumably referring to the notion that a psychiatric injury is less capable of being objectively verified than a physical injury (that is, it is easier for a worker to &lsquo;put on&rsquo; a psychiatric injury than a physical one).</p>
<p>The reference here to &lsquo;economic viability&rsquo; holds that, due to the prevalence of psychiatric injury in the modern workplace, if every worker who sustained a psychiatric injury could obtain impairment benefits, the scheme&rsquo;s costs would blow out.</p>
<p>&lsquo;Economic viability&rsquo; is also a justification in limiting weekly payments for mature workers. As the law stands, a worker who is aged 63&frac12; or older when they sustain injury is limited to 130 weeks of payment. This applies even if the worker would otherwise be entitled to weekly payments beyond 130 weeks, and even if (as is increasingly common) the worker had intended to work beyond the age pension &lsquo;retirement age&rsquo; of 65.</p>
<p>In justification of this provision, it has been argued in Parliament that past the age of 65, a worker would ordinarily be able to obtain an aged pension instead of weekly payments.</p>
<p>While the above justifications of discriminatory provisions are contestable on multiple fronts, at least justifications were given.</p>
<p>By contrast, no justification has been provided with respect to the discriminatory provision which holds that workers over the age of 65 cannot receive a 9% superannuation payment in addition to their weekly payments. As this superannuation payment is a fraction of the weekly payment, and would only be payable to a mature worker for a maximum of 18 months (workers under the scheme are not entitled to superannuation payments until they have received weekly payments for 12 months), it is difficult to see how the &lsquo;economic viability&rsquo; of the scheme would be compromised by extending the superannuation payment to older workers. Arguably, this infringement of the human rights of mature workers is not reasonable or necessary.</p>
<p>In the right case, the refusal of a WorkCover insurer to pay superannuation to a mature worker on the basis of this discriminatory provision could be the subject of review by the Supreme Court of Victoria.</p>
<p>Watch this space.</p>
<p><strong>David Schwartz </strong>is a Senior Associate at <a href="https://advicelineinjurylawyers.com.au/" target="_blank">Adviceline Injury Lawyers</a>. He specialises in common law and statutory benefits claims for injured workers.<strong>&nbsp;</strong></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn how you can get involved and contribute an article. </strong></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/workers-compensation-and-human-rightshttps://www.lawyersalliance.com.au/opinion/workers-compensation-and-human-rightsThu, 06 Apr 2017 00:00:00 +1000The slippery grape strikes again<p><img alt="" src="/sb_cache/blog/id/424/f/grocery-store-2119702_1920.jpg" style="border-width: 1px; border-style: solid; margin: 3px; width: 653px; height: 380px;" />The recent New South Wales District Court decision in <a href="http://www.austlii.edu.au/au/cases/nsw/NSWDC/2016/349.html" target="_blank"><em>Guru v Coles Supermarkets Australia Pty Ltd</em> (2016) NSWDC 349</a> further illustrates the duty owed by supermarkets to lawful entrants to their stores.</p>
<p>In October 2012 Mrs Sangeeta Guru sustained injuries as a result of slipping and falling after stepping on a grape in the fresh produce section of a Coles Supermarket. Mrs Guru fell heavily and suffered injuries to her torso and limbs and sued Coles for these injuries.</p>
<p>At trial, Mrs Guru gave evidence that after the fall she saw a number of grapes stuck to her foot and also noticed a number of other squashed grapes on the floor nearby. She also gave evidence that after the fall she was informed by a Coles employee that she had not had a chance to clean the grapes as she had been on a break.</p>
<p>Liability was contested at trial, with Coles arguing that it was not negligent in the circumstances due to the facts that the risk was obvious and that they did not have a duty to warn customers of such a risk. In the alternative, Coles argued that Mrs Guru&rsquo;s own negligence had caused or contributed to the fall.</p>
<p>The Court, constituted by Levy J, ultimately determined that the defence of obvious risk was not available when applying the objective test of obviousness in the circumstances. Coles wanted its customers to pay attention to the shelves and as such it would be unreasonable to expect Mrs Guru to be looking in two places at once.</p>
<p>In turn, the Court then went on to accept that Coles had breached its duty in the circumstances to take reasonable care with respect to inspection and maintenance of the premises, against a foreseeable risk of injury that could have been avoided by the exercise of reasonable care.</p>
<p>The Court outlined that the breach of duty in the circumstances arose from the fact that the system (floor inspection and cleaning system) failed to prevent Mrs Guru&rsquo;s injuries. This was due to the human element in that system failing, because the resources were not deployed as Coles had expected. Instead, Coles staff were engaged in multi-tasking activities within their business operation.</p>
<p>The employee whose job it was to supervise did not fulfil her function after returning to work from her break, and the others whose job it was to fulfil the inspection and cleaning function, which would have avoided liability to the plaintiff if properly performed, were distracted by other tasks.</p>
<p>The Court, in making an award to Mrs Guru in the sum of $90,130.45, also dismissed Coles&rsquo; argument of contributory negligence, finding her momentary inattention while looking at the goods on display was reasonable.</p>
<p>This decision follows on from other recent decisions, such as <a href="http://archive.sclqld.org.au/qjudgment/2016/QCA16-274.pdf" target="_blank"><em>Woolworths v Grimshaw </em>(2016) QCA 274</a>, where the Queensland Court of Appeal upheld the trial judge&rsquo;s decision that Woolworths was liable for injuries sustained by an employee as a result of slipping on a grape in the fresh produce section of their supermarket.</p>
<p>The judge in this decision found that a reasonable employer in the circumstances would have foreseen that not placing mats (which were available) near the grape display created a risk of injury.</p>
<p>The aforementioned decisions, and those touched upon in our <a href="http://www.gouldson.com.au/slip-and-fall-cases-what-you-need-to-know/" target="_blank">previous article dealing with similar cases</a>, clearly illustrate the strict onus owed by occupiers to have procedures place to ensure the area under their control is a safe environment for lawful entrants.</p>
<p><strong><img alt="" src="/sb_cache/blog/id/473/f/Kaine Shanahan - Gouldson Legal pic - cropped.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 150px; height: 159px;" /><br />
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Kaine Shanahan </strong>is an Associate at&nbsp;<a href="http://www.gouldson.com.au/slip-and-fall-cases-what-you-need-to-know/" target="_blank">Gouldson Legal</a>, a Queensland personal injury plaintiff litigation firm. Kaine has practised since 2007 in NSW, London and Queensland, predominantly in the area of personal injury law.&nbsp;</p>
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<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/the-slippery-grape-strikes-againhttps://www.lawyersalliance.com.au/opinion/the-slippery-grape-strikes-againThu, 30 Mar 2017 00:00:00 +1100Why practitioners should review their TAC files<p><span style="font-size:14px;"><strong>Now is the time to get excited about the Victims of Crime Assistance Tribunal (VOCAT) in Victoria. Other jurisdictions should take note.</strong></span></p>
<p><span style="font-size:14px;">The 2016 Victorian Court of Appeal decision of <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2016/102.html" target="_blank"><em>Pham v VOCAT</em> [2016] VSCA 102</a> (<em>Pham</em>) means that up to $20,000 extra for lost earnings is available to victims of transport accidents where the conduct involved a crime. Presumably, the principle will extend to those who were injured at work.</span></p>
<p><span style="font-size:14px;"><strong>What assistance can VOCAT provide?</strong></span></p>
<p><span style="font-size:14px;">Since the introduction of the Victims of Crime Assistance scheme and VOCAT, the law has provided for very little extra assistance from VOCAT if other schemes were involved. VOCAT is a payer of last resort and if a person was compensated for lost earnings through, for example, the Transport Accident Commission (TAC) or WorkCover schemes, they could not access VOCAT assistance for lost earnings as well. For accident victims or injured workers who previously earned more than the statutory maximums, this created financial hardship.</span></p>
<p><span style="font-size:14px;"><em>Pham </em>provides that victims can claim the &lsquo;gap&rsquo; between the amount of earnings they lose because of a crime and the amount compensated through other schemes, up to $20,000. For clients earning over $67,000 net annually, this may mean $20,000 extra assistance (18 months earnings being $100,000 net and the TAC covering only 80%).</span></p>
<p><span style="font-size:14px;">Under the VOCAT scheme there is also up to $10,000 available as &lsquo;special financial assistance&rsquo;. It is not yet clear how VOCAT or the courts will deal with situations where an impairment benefit or compensation for pain and suffering is also recovered.</span></p>
<p><span style="font-size:14px;">Further, clients can claim expenses under the VOCAT scheme which are not contemplated under the TAC scheme &ndash; as long as the expenses are a direct result of the crime or assist recovery.</span></p>
<p><span style="font-size:14px;"><strong>Which TAC clients can access VOCAT?</strong></span></p>
<p><span style="font-size:14px;">For VOCAT to accept a claim arising from a car accident, it must be satisfied that the relevant act of violence was a crime capable of punishment by imprisonment. For example, VOCAT can award assistance if they are satisfied that the driver&rsquo;s actions would have constituted dangerous or culpable driving. A driver does not need to be charged with or imprisoned for an offence for an award to be made.</span></p>
<p><span style="font-size:14px;">Driving a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, and causing serious injury or death is punishable by imprisonment, even if the driver did not mean to harm anyone.</span></p>
<p><span style="font-size:14px;">The following are examples of conduct which was &lsquo;dangerous driving&rsquo; (plead or found by the court):</span></p>
<ol><li><p><span style="font-size:14px;">Failing to avoid an obstruction caused by vehicles stopped in the left hand lane:&nbsp;<a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2014/184.html" target="_blank"><em>Stevenson v The Queen </em>[2014] VSCA 184</a>.</span></p>
</li>
<li><p><span style="font-size:14px;">Driving through a give way sign at approximately 16km/h with the sun in your eyes and trees obstructing your view: <a href="http://www.austlii.edu.au/au/cases/vic/VCC/2016/1134.html" target="_blank"><em>Director of Public Prosecutions v Warrick</em> [2016] VCC 1134</a>.</span></p>
</li>
<li><p><span style="font-size:14px;">Failing to merge from three lanes into two and driving in a dedicated bicycle lane:&nbsp;<a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2012/194.html" target="_blank"><em>Veerman v The Queen</em> [2012] VSCA 194</a>.</span></p>
</li>
<li><p><span style="font-size:14px;">Failing to pull over when &lsquo;zoning out&rsquo; or fatigued: <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2016/53.html" target="_blank"><em>Director of Public Prosecutions v Borg </em>[2016] VSCA 53</a>.</span></p>
</li>
</ol>
<p><span style="font-size:14px;">In each of these cases, the injured person would have been able to make a TAC claim and also access VOCAT assistance.</span></p>
<p><span style="font-size:14px;">Victims of crime applications should be made within two years of the date of injury. Outside this time, victims need to provide reasons for their delay. Lack of knowledge of their legal rights is not usually a sufficient excuse to allow an extension. For this reason, practitioners should identify files where the injury was caused by conduct which could be seen as a crime and decide whether it would be beneficial for their clients to make a VOCAT application. If clients would like to make a claim, this should be done within two years of the injury or as soon as possible.</span></p>
<p><span style="font-size:14px;">Of course, VOCAT applications also overlap with personal injury claims which are outside the TAC scheme and should be kept in mind whenever a crime is involved in a personal injury claim. This article focuses on TAC files specifically because they are the &lsquo;low-hanging fruit&rsquo; and because TAC clients cannot sue the TAC for earnings lost in the first 18 months. For our TAC clients, there is extra benefit in a VOCAT application as they can recover substantial VOCAT awards to negate the 18-month rule.</span></p>
<p><span style="font-size:14px;">Adviceline Injury Lawyers recently assisted a cyclist who suffered a bad brain injury after a driver turned right in front of them without properly checking for oncoming traffic. VOCAT awarded $20,000 for lost earnings, $6,000 for special financial assistance and $1,650 to help the injured person move closer to treatment. For this reason, we encourage Victorian practitioners to check their files and make VOCAT applications where possible.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/426/f/Sarah Thorn.png.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 150px; height: 159px;" /></strong></span><br />
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<span style="font-size:14px;"><strong>Sarah Thorn i</strong>s a Lawyer at <a href="http://advicelineinjurylawyers.com.au/" target="_blank">Adviceline Injury Lawyers</a> and is an expert in traffic accidents, public liability and victims of crime.</span></p>
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<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article.&nbsp;</a></strong></p>
https://www.lawyersalliance.com.au/opinion/why-practitioners-should-review-their-tac-fileshttps://www.lawyersalliance.com.au/opinion/why-practitioners-should-review-their-tac-filesThu, 23 Mar 2017 00:00:00 +1100Racism is bad for business<p>The recent dogfight over the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/" target="_blank"><em>Racial Discrimination Act</em> 1975 (Cth)</a> isn&rsquo;t just another Canberra gabfest - racism is bad for business. The evidence is overwhelming. Ethnically diverse workplaces, where people are comfortable expressing cultural and religious differences, are happier, more productive and more profitable. So proposals in the parliamentary committee report on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">s18C</a> to limit access to the Australian Human Rights Commission (AHRC; the Commission) should be resisted.</p>
<p>When a worker experiences racism in their private life or at work, it affects their health and their productivity. The impacts are both psychological and physical; individuals experiencing day-to-day racism suffer mental-health problems such as depression and anxiety, as well as measurable physical impacts. Cortisol, (the &lsquo;stress hormone&rsquo;), is released when someone experiences racism, which affects the immune system and metabolism. Studies have shown the resulting health problems can include chronic stress, high blood pressure and other cardiovascular issues. Racism evident in recruitment bias robs businesses of their best candidates by reducing the pool of talent to choose from.</p>
<p>And of course there is an economic cost to racism. According to Deakin University research published by Vichealth and the AHRC last year, it represents an impost of&nbsp;$45 billion per annum.</p>
<p>So eliminating racism in our society is bot just about fairness and equity; it is a good business strategy.</p>
<p>Evidence like this was canvassed during the hearings of the Parliamentary Joint Committee on Human Rights in its recent inquiry into freedom of speech and the <em>Racial Discrimination Act</em>. The Australian Lawyers Alliance gave evidence at the hearings and not only heard terrifying tales of racism, but clear economic reasons to support its eradication.</p>
<p>Australia does a lot of business overseas, especially in our own ethnically and culturally diverse region of the world. Asia&rsquo;s middle class is expanding, and with it opportunities to grow Australian businesses and markets in our region. However, these opportunities will shrink if we are seen as racist by our neighbours.</p>
<p>The AHRC and the <em>Racial Discrimination Act</em> play invaluable roles in eliminating and responding to racism. Whether racism happens in the workplace or in the community, the AHRC supports business when it protects people who experience racism. It receives queries when people feel they have been discriminated against on racial or other grounds and helps to resolve their complaints through conciliation. The process is usually private (unless the participants choose to go public) and there is no need for legal representation. The AHRC helps to smooth relations between people who might not appreciate the impact of their actions, or the motivations of the people who offended them. It keeps disputes out of the public eye, resolving them without court involvement in the vast majority of cases.</p>
<p>Perhaps most importantly, it is accessible. Anyone can call the Commission to talk about what is worrying them. There are no financial barriers to lodging complaints. It is as accessible to CEOs as it is to the unemployed. People are heard when they have a grievance, and supported in learning what is acceptable and what is not under the Act.</p>
<p>Quietly, without most of us knowing it, the Commission is supporting Australia to be a more cohesive and safer community. The organisation&rsquo;s shoestring budget supports an essential social function. It is also an investment in business development, and reduces the costs of racism.</p>
<p>However, the Report recently published by the Parliamentary Joint Committee on Human Rights&nbsp; makes recommendations that could undermine all of that. Any reform that makes it harder for genuine complainants to access the Commission, or assert their rights in court (if required), will be a barrier to eliminating racism and the social and business benefits this represents. Despite this, the Committee recommended introducing a refundable lodgement fee when making a complaint.</p>
<p>It had&nbsp;no evidence to&nbsp;suggest&nbsp;that this would discourage unmeritorious complaints. Other recommendations, such as increasing the Commission&rsquo;s ability to terminate complaints in line with its&nbsp;own recommendation, would surely provide any&nbsp;disincentive needed. Imposing a financial barrier to accessing justice is likely to deter just as many legitimate complaints as those with low prospects of success.</p>
<p>Changes to incurred costs are also recommended in the Report. Claimants seeking to pursue their claims in court, following dismissal by the Commission, would have to provide security for costs if recommendation 21 was implemented. While the costs arrangements proposed are already available in any civil claim (such as providing security for costs in rare cases or making certain costs payable if a reasonable settlement offer is not accepted), it is odd to specify that they are available in claims under the <em>Racial Discrimination Act</em>. Why do claimants under this Act need specific warning?</p>
<p>The Report&nbsp;also recommends making it more difficult for lawyers to act in racial discrimination cases. Some of these recommendations, such as asking lawyers to certify that their client has a good prospect of success, put lawyers in a challenging ethical position, making it harder to represent clients in these claims.</p>
<p>No one benefits by making it harder to access the Commission, or the courts, to stop racism. We rarely hear about the amazing work that it does. It lets people know that racial and other discrimination is not acceptable in Australia both those&nbsp;who use its services and those who experience racism but choose not to. This can only grow productivity, increase profits, and strengthen business both here and abroad.</p>
<p>Keeping this framework strong and accessible just makes economic sense.</p>
<p><strong><img alt="" src="/sb_cache/blog/id/238/f/Anna Talbot 3 resized to square (1).jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; width: 100px; height: 100px; float: left;" /><br />
Anna Talbot&nbsp;</strong>is the Legal and Policy Adviser at the&nbsp;Australian Lawyers Alliance.</p>
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<p><strong><img alt="" src="/sb_cache/newsmenu/id/8/f/Greg Barns 100x100px.jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; float: left; width: 100px; height: 100px;" /><br />
Greg Barns&nbsp;</strong>is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance.<strong>&nbsp;</strong></p>
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https://www.lawyersalliance.com.au/opinion/racism-is-bad-for-businesshttps://www.lawyersalliance.com.au/opinion/racism-is-bad-for-businessThu, 16 Mar 2017 00:00:00 +1100Withdrawing and substituting issued bills of costs: can it be done?<p>Solicitors have many responsibilities to their clients, highlighted by the introduction of the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/lpul333/" target="_blank"><em>Legal Profession Uniform Law </em>2015 (NSW)</a> (the <em>Uniform Law</em>) which increased solicitors&rsquo; disclosure obligations, in particular by imposing an obligation on solicitors to take all reasonable steps to satisfy themselves that the client has understood and given consent to costs disclosures made: the <em>Uniform Law </em><a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/lpul333/s174.html" target="_blank">s174(3)</a>.</p>
<p>This article focuses on the rights of solicitors. In particular, whether or not solicitors have the right to withdraw an invoice issued to their client and substitute it with an itemised bill of costs claiming higher fees than the original invoice.</p>
<p>This situation often arises during costs assessments or negotiations as to costs: a client challenges an invoice issued to them on a lump sum basis and the solicitor responds with an itemised bill (including additional fees either previously discounted or not charged at all). Such an itemised bill may, for example, add attendances undertaken by paralegals or attendances undertaken after hours not previously invoiced.</p>
<p>This situation can arise regardless of whether or not a client has paid any fees towards the original invoice.</p>
<p><strong>GENERAL RULE</strong></p>
<p>The general rule at common law is that, in the absence of a court order or the consent of the client, a solicitor is not entitled to withdraw a bill of costs once issued to a client and substitute the bill for an increased amount: <a href="http://www.worldlii.org/int/cases/EngR/1797/463.pdf" target="_blank"><em>Loveridge v Botham</em> 1797 ENG R 463</a>. Bowen CJ summarised the rule in <em>Florence Investments Pty Limited v H G Slater &amp; Co </em>(1975) 2 NSWLR 398 (<em>Florence Investments</em>) at 401:</p>
<p style="margin-left:27.0pt;">&lsquo;If a bill of costs is sent to the client without any condition being stated, then the solicitor cannot, in the case of a taxable bill, afterwards withdraw it and send in an amended bill.&rsquo;</p>
<p>The qualification &lsquo;taxable bill&rsquo;, or &lsquo;assessable bill&rsquo; since deregulation, is important and is &nbsp;discussed later in this article.</p>
<p>Hoare J in <em>Re Edwin Sutherland &amp; Co&#39;s Bill of Costs </em>(1971) Qd R 318 (<em>Re Edwin</em>) at 322 clarified the policy behind this general rule as follows:</p>
<p style="margin-left:27.0pt;">&rsquo;Undoubtedly, one of the reasons for this approach is that were it not for some such general rule, it might well be open to solicitors to act oppressively in particular circumstances.</p>
<p>Tadgell J made a similar observation in <em>Redfern v Mineral Engineers Pty Ltd</em> [1987] VR 518, at 523.</p>
<p><strong>EXCEPTIONS</strong></p>
<p>Most general rules have exceptions, as does this rule. Well-established case law highlights circumstances in which solicitors have been able to, and still can, withdraw an invoice (however itemised) and substitute it with a bill of costs seeking greater fees. Such circumstances arise when:</p>
<ol><li>there is a contractual arrangement between the parties entitling the solicitor to withdraw the bill of costs and substitute a larger Bill of Costs: <em>Re Thompson</em> (1885) 30 Ch D 441 (<em>Re Thompson</em>); <a href="http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/884.html" target="_blank"><em>Gorczynski v Beilby </em>(2005) NSWSC 884</a> (<em>Gorczynski v Beilby</em>);</li>
<li>a reservation is made by the solicitor in the lump sum bill that if the client requires an itemised bill the solicitor shall be entitled to withdraw the bill of costs and substitute a larger taxable bill of costs: <em>Florence Investments</em>; <a href="http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/277.html" target="_blank"><em>Gorczynski v AWM Dickinson &amp; Son </em>(2005) NSWSC 277</a>; <a href="http://www.austlii.edu.au/au/legis/nsw/consol_reg/lpugr2015372/s74.html" target="_blank"><em>Legal Profession Uniform General Rules </em>2015 (the<em> General Rules</em>) (NSW) r74</a>;</li>
<li>there are clear errors or real omissions as a result of, for example, fraud: <em>Re Thompson; Bowen &amp; Ors v Campbell &amp; Ors </em>(unreported, Master Malpass, 2 December 1997) (<em>Bowen &amp; Ors</em>);</li>
<li>a bill is not in taxable form, thus entitling the solicitor to withdraw that bill and replace it with a bill in taxable form: <em>Florence Investments</em>.</li>
</ol>
<p><strong>Exceptions 1 and 2: Contractual arrangement and reservation of rights</strong></p>
<p>In <a href="http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/884.html" target="_blank"><em>Gorczynski v Beilby</em></a>, Kirby J confirmed (at [59]) that the general rule on substitution of bills is subject to the qualification that a solicitor and their client may contractually seek to provide otherwise. However, this is subject to the court&#39;s power to strike down a condition which is unfair.</p>
<p>The rule accepted by the courts in <em>Re Thompson</em> and <em>Florence Investments </em>in relation to a reservation of rights clause is as follows:</p>
<p style="margin-left:27.0pt;">&lsquo;A solicitor may, when sending in his bill of costs to his client, reserve to himself the right to withdraw or alter it on condition, provided the condition is fully and clearly stated to the client: but if the solicitor has sent in his bill without any condition, or with a condition which he could not fairly impose, he cannot afterwards withdraw it or send in an amended bill.&rsquo;</p>
<p>The solicitor&rsquo;s right to a reservation of rights clause is now protected by <a href="http://www.austlii.edu.au/au/legis/nsw/consol_reg/lpugr2015372/s74.html" target="_blank">r74</a> of the new <em>Legal Profession Uniform General Rules </em>2015 (NSW).</p>
<p><strong>Exception 3: Clear errors or real omissions (special circumstances)</strong></p>
<p>The third and the fourth exceptions &nbsp;&nbsp;cause the majority of misunderstandings in this area.</p>
<p>In <em>Re Edwin </em>and in <em>Re Holroyde and Smith</em> (1881) 43 LT 722 (<em>Re Holroyde</em>), the court said that there must be special circumstances to entitle a solicitor to withdraw one bill and substitute another: such as fraud, accident or mistake. This approach was confirmed in <em>Bowen &amp; Ors</em>.&nbsp;&nbsp;</p>
<p>Examples of special circumstances are provided by Jessel MR in <em>Re Holroyde </em>&nbsp;:</p>
<p style="margin-left:36.0pt;">&lsquo;&hellip;when the solicitor has been entrapped into making charges by the misrepresentations of his client or in the case of accident, where a charge or a page had been inserted [or omitted] by mistake; but special circumstances there must be.&rsquo;</p>
<p>The importance of there being a &lsquo;bona fide mistake&rsquo; in order to qualify as a special circumstance is explored in <em>Re Walters</em> (1845) 9 Beav 299; <em>Marshall v Oxford</em> (1832) 5 Sim 456; <em>Re Holroyde</em>; and <em>Re Negus </em>[1895] 1 Ch 73.</p>
<p>One costs assessor has recently determined that failure by a law firm to set up a system to capture all time spent with respect to the work carried out for a client is not a special circumstance.</p>
<p>A special circumstance arises when there has been a clear error or real omission or an occurrence beyond the control of the law practice exercising reasonable care.</p>
<p><strong>Exception 4: Withdrawing a bill not in taxable form </strong></p>
<p>The general rule as stated in <a href="http://www.worldlii.org/int/cases/EngR/1797/463.pdf" target="_blank"><em>Loveridge v Botham</em></a> contains the qualification &lsquo;taxable&rsquo; bill, a term appropriate to the days when bills were taxed before the Registrar. Bills are now assessed by court-appointed costs assessors and the rule is now applied to &lsquo;assessable&rsquo; bills.</p>
<p>Kirby J in <a href="http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/884.html" target="_blank"><em>Gorczynski v Beilby</em></a> held that costs assessors retain authority to determine whether or not a bill of costs is in assessable form, and whether or not a solicitor is entitled to withdraw one bill and reissue another in assessable form.</p>
<p>This can create issues for solicitors, as criteria as to whether or not their original bill is in assessable form are unclear and can vary depending on the circumstances of each matter.</p>
<p><em><u>What is a Bill of Costs? And is it in assessable form?</u></em></p>
<p>Neither the <em>Uniform Law </em>nor its predecessor, the <em>Legal Profession Act </em>2004 (NSW) (the <em>LPA</em>), specify what constitutes a bill in assessable form. <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/lpul333/s198.html" target="_blank">Section 198</a> of the <em>Uniform Law </em>(and ss350 and 352 of the <em>LPA</em>) permits an application to be made by either a client or a law practice for an assessment of the whole or any part of the legal costs payable or paid to the law practice. Normally this is done by annexing a bill of costs to an application for assessment of costs.</p>
<p><a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/lpul333/s186.html" target="_blank">Section 186</a> of the <em>Uniform Law </em>ensures that bills may be in the form of either a lump sum bill or an itemised bill, as did its predecessor equivalent, s332 of the <em>LPA</em>. <a href="http://www.austlii.edu.au/au/legis/nsw/consol_reg/lpugr2015372/s5.html" target="_blank">Regulation 5 </a>of the <em>General Rules </em>defines a lump sum bill in similar terms to s302 of the <em>LPA</em>, as &lsquo;a bill that describes the legal services to which it relates and specifies the total amount of the legal costs&rsquo;. An itemised bill is further defined as &lsquo;a bill that specifies in detail how the legal costs are made up in a way so as to allow costs to be assessed&rsquo;.</p>
<p>Neither provision requires an application for assessment of costs to be made by way of a bill of costs &lsquo;in assessable form&rsquo;. Any bill, whether itemised or lump sum, will be considered assessable so long as sufficient detail is specified so as to allow costs to be assessed.</p>
<p>The now repealed <a href="http://www.austlii.edu.au/au/legis/nsw/repealed_reg/lpr2005270/s111b.html" target="_blank">reg111B</a> of the <a href="http://www.austlii.edu.au/au/legis/nsw/repealed_reg/lpr2005270/" target="_blank"><em>Legal Profession Regulation </em>2005 (NSW) </a>did prescribe the contents of an itemised bill, including the dates and amounts for each attendance and whether attendances were by letter, telephone, perusal, drafting, conference, etc. As this prescription has not been carried over into the new <em>General Rules</em>, the decision of <em>Florence Investments </em>(in relation to a solicitor&rsquo;s right to substitute a bill not in assessable form) now has far less, if any, relevance.</p>
<p>Of course, the more detailed a bill of costs, the easier it is for the costs assessor to determine whether or not costs were reasonably incurred, carried out in a reasonable manner and were fair and reasonable, thereby increasing the chances for maximum costs recovery.</p>
<p><strong>CONCLUSION</strong></p>
<p>Exceptions to the general rule, permitting substitution of invoices with itemised bills in higher amounts than previously invoiced, remain important. Contractual arrangements, reservations of rights and remedies where clear omissions or errors have occurred assist the solicitor to ensure full fee recovery.</p>
<p>Claims that a detailed invoice is not in assessable form may not satisfy costs assessors who consider sufficient detail has been specified, when coupled with a review of the solicitor&rsquo;s file in the matter, to enable an invoice to be assessed.</p>
<p>The <em>Florence Investments </em>exception appears to have been superseded by an increase in costs assessors&rsquo; discretion by default, with the absence now of a prescription for the content of a bill of costs. How frequently this discretion will be exercised in the future is an open question.</p>
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<p><strong><img alt="" src="/sb_cache/blog/id/396/f/Dipal Prasad.jpg" style="border-width: 1px; border-style: solid; margin: 3px; float: left; width: 100px; height: 114px;" />Dipal Prasad </strong>is an associate at <a href="http://www.bstone.com.au/" target="_blank">Blackstone Legal Costing</a>, one of the largest&nbsp;legal costing firms in Australia with experienced&nbsp;costs&nbsp;lawyers and&nbsp;consultants in Sydney, Melbourne and&nbsp;Brisbane. Dipal is committed to maximising costs recovery for successful parties in litigation and minimising costs liability for unsuccessful parties.</p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/withdrawing-and-substituting-issued-bills-of-costs-can-it-be-donehttps://www.lawyersalliance.com.au/opinion/withdrawing-and-substituting-issued-bills-of-costs-can-it-be-doneThu, 09 Mar 2017 00:00:00 +1100Pain and psychological conditions<p><em>This is the third and final article in a series on pain medicine. Read the <a href="https://www.lawyersalliance.com.au/opinion/pain-medicine-physicians-and-pain-management-programmes" target="_blank"><strong>first</strong></a> and <a href="https://www.lawyersalliance.com.au/opinion/complex-regional-pain-syndrome-a-diagnostic-challenge-for-clinicians-a" target="_blank"><strong>second</strong></a> articles.</em></p>
<p>&#39;Which&nbsp;comes first,&nbsp;the chicken or the egg?&#39;</p>
<p>In independent medical assessments, experts often mention the effect of painful conditions on mental health and the effect of mental health conditions on an individual&rsquo;s pain.</p>
<p>There is a complex relationship between physical and non-physical conditions that determine how an individual experiences pain. Psychiatrists skilled in the assessment of pain play a central role by determining the correct diagnosis, treatment, causation and apportionment of physical and psychological factors.</p>
<p><strong>Psychosocial and non-organic influences on pain and suffering </strong></p>
<p>When an individual&rsquo;s pain cannot be clearly explained, or seems disproportionate to their underlying medical condition, terms such as &lsquo;psychosocial factors&rsquo; or &lsquo;non-organic factors&rsquo; are often loosely used in lieu of a real diagnosis to explain the gap between an expected level of pain and suffering and that which is observed. Skilled interviews that explore and detail the origin and nature of psychosocial factors are psychiatrists&rsquo; &lsquo;bread and butter&rsquo;, and can provide an informed opinion as to how non-physical factors can affect a person&rsquo;s pain and suffering.</p>
<p>For the non-clinician, psychological factors are best thought of as those factors arising from within the individual that influence an individual&rsquo;s pain, whereas social factors refer to &lsquo;external factors&rsquo; (sometimes referred to as environmental influences) on pain and suffering.</p>
<table border="1" cellpadding="0" cellspacing="0">
<tbody>
<tr>
<td style="width:276px;"><p><span style="font-size:12px;"><strong>Psychological factors </strong></span></p>
</td>
<td style="width:276px;"><p><span style="font-size:12px;"><strong>Social factors</strong></span></p>
</td>
</tr>
<tr>
<td style="width:276px;"><p><span style="font-size:12px;">Co-existing mental illness</span></p>
<p><span style="font-size:12px;">E.g. depressed mood, anxiety, post-traumatic stress, somatisation disorder</span></p>
</td>
<td style="width:276px;"><p><span style="font-size:12px;">Workplace bullying</span></p>
</td>
</tr>
<tr>
<td style="width:276px;"><p><span style="font-size:12px;">Cognitive processes</span></p>
<p><span style="font-size:12px;">E.g. &lsquo;pain means harm&rsquo;</span></p>
</td>
<td style="width:276px;"><p><span style="font-size:12px;">Cultural beliefs;</span></p>
<p><span style="font-size:12px;">Religious beliefs</span></p>
</td>
</tr>
<tr>
<td style="width:276px;height:21px;"><p><span style="font-size:12px;">Effects of pain-relieving medication</span></p>
<p><span style="font-size:12px;">E.g. long term narcotic use</span></p>
</td>
<td style="width:276px;height:21px;"><p><span style="font-size:12px;">Reinforcement</span></p>
<p><span style="font-size:12px;">E.g. family members</span></p>
</td>
</tr>
<tr>
<td style="width:276px;height:21px;"><p><span style="font-size:12px;">Self-esteem</span></p>
</td>
<td style="width:276px;height:21px;"><p><span style="font-size:12px;">Reinforcement of pain behaviours;</span></p>
<p><span style="font-size:12px;">Ongoing litigation</span></p>
</td>
</tr>
</tbody>
</table>
<p><span style="font-size:12px;"><strong><em>Table 1</em></strong><em> Psychological and social factors that may influence pain and suffering</em></span></p>
<p><strong>Depression, anxiety and pain</strong></p>
<p>Depressive disorders are the most common psychiatric disorders associated with chronic pain, followed by anxiety disorders, post-traumatic stress disorders and substance misuse. Over 60% of patients with chronic pain report depressive symptoms while the prevalence of major depression in patients with chronic pain is 30-40% (with 15% reporting suicidal thoughts).</p>
<p>Because persistent pain impacts negatively on work, physical activity and socialisation, depression in chronic pain patients is more likely to be a consequence of, rather than the cause of, an individual&rsquo;s pain and suffering. The relationship between a person&rsquo;s pain and their mental health is also bi-directional in that pain may cause worsening depression and under-treated depression and anxiety will cause an individual to experience more pain than if they were not depressed or anxious.</p>
<p>Under-treated depression and anxiety impairs optimal responses to any other pain-directed treatment and should not be ignored. There are biological and behavioural connections between depression and anxiety and the perception of pain or &lsquo;pain threshold&rsquo;; the neurochemical imbalances seen in depression and anxiety can enhance the transmission and processing of painful stimuli, and at the same time neuro-vegetative sequelae of depression and anxiety (disturbances in sleep, sexual function, appetite, concentration and motivation) can lead to physical deconditioning, reduced pain tolerances and &lsquo;boom and bust&rsquo; behaviour.</p>
<p><strong>Somatoform disorders and pain </strong></p>
<p>Somatisation Disorder, Pain Disorder and Pain Disorder Associated with a General Medical Condition (PDAGMC) are three conditions easily confused by non-psychiatrists.</p>
<p>The first two of these conditions, Somatisation Disorder and Pain Disorder (see Table 2 below), are considered mental health disorders and belong to a group of mental health conditions known as the &lsquo;somatoform disorders&rsquo;<em>. </em>PDAGMC, however, is not considered a mental health disorder.</p>
<p>Somatoform Disorders also include Conversion Disorder, Hypochondriasis and Body Dysmorphic Disorder and are all characterised by the presence of physical symptoms that suggest an underlying medical condition but are not fully explained by that general medical condition. For example, a patient reporting altered sensation in different regions of the body that cannot be explained by any neurological disease might be suffering from a somatoform disorder. However, as our knowledge and understanding of the nervous system has grown, symptoms such as the various neuropathic pain states allodynia,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> dysesthesia<a href="#_ftn2" name="_ftnref2" title="">[2]</a> and hyperalgesia<a href="#_ftn3" name="_ftnref3" title="">[3]</a> that were once not explained by a general medical process are now understood to arise from a re-wiring of the nervous system known as neuroplasticity, and can therefore be explained in terms of a general medical condition.</p>
<table border="1" cellpadding="0" cellspacing="0">
<tbody>
<tr>
<td style="width:277px;"><p><span style="font-size:12px;"><strong>Somatisation Disorder</strong></span></p>
</td>
<td style="width:276px;"><p><span style="font-size:12px;"><strong>Pain Disorder </strong></span></p>
</td>
</tr>
<tr>
<td style="width:277px;"><p><span style="font-size:12px;">Recurring multiple somatic complaints which result in treatment or cause impairment of social or occupational function, the onset of which occurs before 30 years of age; and</span></p>
<p><span style="font-size:12px;">Pain must be present in four different sites (e.g. head, arm, leg, eye), or functions (e.g. menstruation, eating, elimination); and</span></p>
<p><span style="font-size:12px;">Two gastrointestinal symptoms other than pain (e.g. bloating, nausea, food intolerances); and</span></p>
<p><span style="font-size:12px;">One sexual symptom (e.g. erectile dysfunction, menstrual irregularities); and</span></p>
<p><span style="font-size:12px;">One or more symptom or deficit suggesting a neurological condition not related to pain (e.g. double vision, temporary weakness, loss of consciousness); and</span></p>
<p><span style="font-size:12px;">Either:</span></p>
<p><span style="font-size:12px;">(1) The symptoms cannot be fully explained by a recognised general medical condition or by side-effects of medication; or</span></p>
<p><span style="font-size:12px;">(2) The symptoms are more than what would normally be expected of that general medical condition.</span></p>
</td>
<td style="width:276px;"><p><span style="font-size:12px;">Pain in one or more anatomical sites;</span></p>
<p><span style="font-size:12px;">Pain causes significant distress or impairment in social or occupational functioning;</span></p>
<p><span style="font-size:12px;">Psychological factors are judged to have an important role ;</span></p>
<p><span style="font-size:12px;">Symptom is not intentionally feigned;</span></p>
<p><span style="font-size:12px;">Pain not better accounted for by other psychological condition e.g. depression or anxiety.</span></p>
</td>
</tr>
</tbody>
</table>
<p><span style="font-size:12px;"><strong><em>Table 2</em></strong><em> Diagnostic criteria for pain-related somatoform disorders</em></span></p>
<p>&nbsp;</p>
<p>In PDAGMC, the onset of pain is closely linked to the onset of a medical condition in which psychological factors (if present) are considered <em>not</em> to have a major role. Lower back pain is an example of PDAGMC.</p>
<p><strong>Implications for independent medical assessments </strong></p>
<p>The key to differentiating between a somatoform pain disorder and PDAGMC is a close, collaborative diagnosis between a psychiatrist (to assess the presence and relative contribution of psychological factors) and an appropriate expert physician who is able to assess and exclude symptoms that may be caused by any known general medical condition.</p>
<p>&nbsp;</p>
<p><strong>Dr Marc Walden</strong> is a pain medicine physician, independent medical examiner and the principal of <a href="http://www.greenslopesmedicolegal.com.au/" target="_blank">Greenslopes Medicolegal</a>.<strong> </strong></p>
<p><strong>Dr Kym Boon </strong>is a psychiatrist and pain medicine physician and independent medical examiner.</p>
<p><em>This is the third and final article in a series on pain medicine. Greenslopes Medicolegal specialises in the provision of independent pain and psychiatric reports. </em></p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<div>&nbsp;
<hr align="left" size="1" width="33%" />
<div id="ftn1"><p><span style="font-size:12px;"><a href="#_ftnref1" name="_ftn1" title="">[1]</a> Central pain sensitisation (increased response of neurons) following normally non-painful, often repetitive, stimulation.</span></p>
</div>
<div id="ftn2"><p><span style="font-size:12px;"><a href="#_ftnref2" name="_ftn2" title="">[2]</a> Defined as an &lsquo;unpleasant, abnormal sense of touch&rsquo;. It often presents as pain but may also present as an inappropriate, but not discomforting, sensation.</span></p>
</div>
<div id="ftn3"><p><span style="font-size:12px;"><a href="#_ftnref3" name="_ftn3" title="">[3]</a> An increased sensitivity to pain, which may be caused by nerve damage.</span></p>
</div>
</div>
https://www.lawyersalliance.com.au/opinion/pain-and-psychological-conditionshttps://www.lawyersalliance.com.au/opinion/pain-and-psychological-conditionsThu, 02 Mar 2017 00:00:00 +1100Complex regional pain syndrome: a diagnostic challenge for clinicians <p><span style="font-size:14px;"><em>Read the first article in the series <strong><a href="https://www.lawyersalliance.com.au/opinion/pain-medicine-physicians-and-pain-management-programmes" target="_blank">here</a></strong>.</em></span></p>
<p><span style="font-size:14px;">Complex Regional Pain Syndrome (CRPS) is a condition that is frequently disputed in personal injury compensation claims. Even for clinicians who regularly see cases of CRPS it can represent diagnostic difficulties. For other clinicians who see cases of CRPS less frequently, it maybe wrongly referred to as Chronic Regional Pain Syndrome or Chronic Pain Syndrome.</span></p>
<p><span style="font-size:14px;"><strong>Clinical presentation</strong></span></p>
<p><span style="font-size:14px;">CRPS is a disorder of the nervous system in which pain is accompanied by disturbances in the motor nervous system and the regulatory nervous system, producing a variable clinical picture characterised by one or more of the following features.</span></p>
<table border="1" cellpadding="1" cellspacing="1" style="width: 500px;">
<tbody>
<tr>
<td><p><span style="font-size:12px;"><strong>Sensory Nerve disturbances</strong></span></p>
</td>
<td><p><span style="font-size:12px;"><strong>Movement Abnormalities</strong></span></p>
</td>
<td><p><span style="font-size:12px;"><strong>Regulatory Changes</strong></span></p>
</td>
</tr>
<tr>
<td><p><span style="font-size:12px;">Hypersensitivity</span></p>
<p><span style="font-size:12px;">(increased sensation to a normally painful stimulus eg heat or pin prick)</span></p>
</td>
<td><p><span style="font-size:12px;">Weakness</span></p>
</td>
<td><p><span style="font-size:12px;">Temperature abnormalities</span></p>
</td>
</tr>
<tr>
<td><p><span style="font-size:12px;">Allodynia</span></p>
<p><span style="font-size:12px;">(pain in response to a normally non-painful stimulus eg light touch)</span></p>
</td>
<td><p><span style="font-size:12px;">Stiffness</span></p>
</td>
<td><p><span style="font-size:12px;">Perspiration (pseudo motor) changes</span></p>
</td>
</tr>
<tr>
<td><p><span style="font-size:12px;">Hyperpathia</span></p>
<p><span style="font-size:12px;">(pain in response to a repeated stimulus eg vibration)</span></p>
</td>
<td><p><span style="font-size:12px;">Muscle wasting</span></p>
</td>
<td><p><span style="font-size:12px;">Changes in skin, hair and nail growth</span></p>
</td>
</tr>
<tr>
<td><p>&nbsp;</p>
</td>
<td><p><span style="font-size:12px;">Tremor</span></p>
</td>
<td><p><span style="font-size:12px;">Blood flow changes (pale or mottled skin)</span></p>
</td>
</tr>
<tr>
<td><p>&nbsp;</p>
</td>
<td><p>&nbsp;</p>
</td>
<td><p><span style="font-size:12px;">Swelling</span></p>
</td>
</tr>
</tbody>
</table>
<p>&nbsp;</p>
<p><span style="font-size:14px;">The features of CRPS are not constant and may be present only intermittently or only in response to a provoking activity. Temporal changes are also seen following injury as the condition either improves or alters from an acute (inflammatory) phase of CRPS characterised by redness, swelling and warmth, into a chronic phase characterised by muscle atrophy, contracture, coldness and pallor.</span></p>
<p><span style="font-size:14px;">While CRPS is usually confined to one of the limbs, it is also (less commonly) seen in non-extremities such as the breast or the knee. CRPS can also spread from one side of the body to the opposite side and may &lsquo;skip&rsquo; from an injured or immobilised part of the body to a remote and uninjured part of the body.</span></p>
<p><span style="font-size:14px;"><strong>Mechanism of CRPS </strong></span></p>
<p><span style="font-size:14px;">While the exact mechanism of CRPS in humans is uncertain, research underpinned by functional Magnetic Resonance Imaging (fMRI) suggests that CRPS is the result of nervous system re-wiring in response to injury or immobilisation. An analogy that may be usefully employed to explain this condition to patients is that in CRPS the nervous system is like an old-fashioned hardwired telephone exchange in which many thousands of its cables become wrongly connected to each other.</span></p>
<p><span style="font-size:14px;"><strong>Treatment and recovery</strong></span></p>
<p><span style="font-size:14px;">Recovery from CRPS is highly variable. There are cases reported in which symptoms of CRPS have lasted for only a few days before complete resolution of symptoms, and others where no discernible recovery ever occurs. While it is difficult to assign an individual case of CRPS an accurate prognosis, early interventions aimed at restoring normal use of the affected body part are generally associated with earlier and more complete recovery.</span></p>
<table border="1" cellpadding="0" cellspacing="0">
<tbody>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;"><strong>Treatments for Complex &nbsp;Regional Pain Syndrome</strong></span></p>
</td>
</tr>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;">Corticosteroid medication</span></p>
</td>
</tr>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;">Vitamin C</span></p>
</td>
</tr>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;">Antineuropathic pain medications</span></p>
</td>
</tr>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;">Nerve blocks</span></p>
</td>
</tr>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;">Neuromodulation</span></p>
</td>
</tr>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;">Mirror box therapy</span></p>
</td>
</tr>
<tr>
<td style="width:342px;"><p><span style="font-size:12px;">Graded motor imagery</span></p>
</td>
</tr>
</tbody>
</table>
<p>&nbsp;</p>
<p>Because of the wide range of treatments that may be usefully employed, an individual with CRPS is optimally managed within the setting of an inter-disciplinary team of healthcare professionals.</p>
<p><span style="font-size:14px;"><strong>Diagnostic difficulties</strong></span></p>
<p><span style="font-size:14px;">Diagnostic difficulties arise because there is no single test or investigation specific for CRPS and diagnosis is reliant upon the presence or absence of various combinations of symptoms and signs. Historically, clinicians have changed their consensus opinion as to what combination of clinical signs and symptoms are necessary to diagnose this condition and whether such clinical signs and symptoms have to be present at the time of examination or can have been recorded as present at any time since the injury or immobilisation occurred.</span></p>
<p><span style="font-size:14px;">Expert reports can be requested months or years after symptoms of CRPS are first noticed. This presents additional difficulties, because an individual who initially displayed sufficient signs and symptoms to diagnose CRPS, may, at the time they present for &nbsp;independent medical examination, have begun to recover and no longer display the same signs and symptoms as they did earlier.</span></p>
<table border="1" cellpadding="0" cellspacing="0">
<tbody>
<tr>
<td style="width:200px;"><p><span style="font-size:12px;"><strong>AMA Guides to Evaluation of Permanent Impairment 5<sup>th</sup> Edition criteria to diagnose CRPS</strong></span></p>
</td>
<td style="width:200px;"><p><span style="font-size:12px;"><strong>Budapest Consensus Criteria for the diagnosis of CRPS</strong></span></p>
</td>
<td style="width:200px;"><p><span style="font-size:12px;"><strong>AMA Guides to Evaluation of Permanent Impairment 6<sup>th</sup> Edition criteria to diagnose CRPS</strong></span></p>
</td>
</tr>
<tr>
<td style="width:200px;">
<ol style="list-style-type:upper-alpha;"><li><p><span style="font-size:12px;">Vasomotor changes:</span></p>
</li>
</ol>
<ul><li><p><span style="font-size:12px;">Skin colour mottled or cyanotic;</span></p>
</li>
<li><p><span style="font-size:12px;">Skin temperature cool;</span></p>
</li>
<li><p><span style="font-size:12px;">Oedema.</span></p>
</li>
</ul>
<ol style="list-style-type:upper-alpha;"><li value="2"><p><span style="font-size:12px;">Pseudomotor changes:</span></p>
</li>
</ol>
<ul><li><p><span style="font-size:12px;">Skin dry or overly moist.</span></p>
</li>
</ul>
<ol style="list-style-type:upper-alpha;"><li value="3"><p><span style="font-size:12px;">Trophic changes:</span></p>
</li>
</ol>
<ul><li><p><span style="font-size:12px;">Skin texture smooth, non-elastic;</span></p>
</li>
<li><p><span style="font-size:12px;">Soft tissue atrophy;</span></p>
</li>
<li><p><span style="font-size:12px;">Joint stiffness and decreased passive motion;</span></p>
</li>
<li><p><span style="font-size:12px;">Nail changes: blemished, curved, talon-like.</span></p>
</li>
<li><p><span style="font-size:12px;">Hair growth changes: falls out, longer, finer.</span></p>
</li>
</ul>
<ol style="list-style-type:upper-alpha;"><li value="4"><p><span style="font-size:12px;">Radiographic Changes:</span></p>
</li>
</ol>
<ul><li><p><span style="font-size:12px;">Radiographs: trophic bone changes, osteoporosis;</span></p>
</li>
<li><p><span style="font-size:12px;">Bone scan: findings consistent with CRPS.</span></p>
</li>
</ul>
<p>&nbsp;</p>
<p><span style="font-size:12px;">&lt; 8 of the above signs present at time of examination = no CRPS;</span></p>
<p><span style="font-size:12px;">&gt; 8 of the above signs present at time of examination = CRPS probable.</span></p>
</td>
<td style="width:200px;"><p><span style="font-size:12px;">1. Continuing pain which is disproportionate to any inciting event.</span></p>
<p><span style="font-size:12px;">2. Must report at least one symptom in 3 of the 4 following categories</span></p>
<ol style="list-style-type:upper-alpha;"><li><p><span style="font-size:12px;">Sensory (pain).</span></p>
</li>
<li><p><span style="font-size:12px;">Vasomotor.</span></p>
</li>
<li><p><span style="font-size:12px;">Psueudomotor/oedema.</span></p>
</li>
<li><p><span style="font-size:12px;">Motor /trophic.</span></p>
</li>
</ol>
<p><span style="font-size:12px;">3. Must display at least one sign at the time of examination in 2 or more of the following categories</span></p>
<ol style="list-style-type:upper-alpha;"><li><p><span style="font-size:12px;">Sensory: evidence of hyperalgesia or allodynia.</span></p>
</li>
<li><p><span style="font-size:12px;">Vasomotor: evidence of temperature asymmetry and/or skin colour changes and/or asymmetry.</span></p>
</li>
<li><p><span style="font-size:12px;">Pseudomotor/oedema: evidence of oedema or sweating changes and/or sweating asymmetry.</span></p>
</li>
<li><p><span style="font-size:12px;">Motor/trophic: evidence or decreased range of motion and/or motor dysfunction and or trophic changes (hair, nail, skin).</span></p>
</li>
</ol>
<p><span style="font-size:12px;">4. There is no other diagnosis that better explains the signs and symptoms.</span></p>
</td>
<td style="width:200px;"><p><span style="font-size:12px;">1. Must report at least one symptom in 3 or 4 of the following categories:</span></p>
<ol style="list-style-type:upper-alpha;"><li><p><span style="font-size:12px;">Sensory: reports of hyperaesthesia and or allodynia.</span></p>
</li>
<li><p><span style="font-size:12px;">Vasomotor: reports of temperature asymmetry and or skin colour changes and or skin colour asymmetry.</span></p>
</li>
<li><p><span style="font-size:12px;">Pseudomotor/oedema: reports of oedema and or sweating changes and or sweating asymmetry.</span></p>
</li>
<li><p><span style="font-size:12px;">Motor/trophic: reports of decreased range of motion and or motor dysfunction (weakness tremor dystonia and or trophic changes (hair, nail, skin).</span></p>
</li>
</ol>
<p><span style="font-size:12px;">2. Must display at least one sign at time of evaluation in 2 or more of the following categories:</span></p>
<ol style="list-style-type:upper-alpha;"><li><p><span style="font-size:12px;">Sensory: reports of hyperaesthesia and or allodynia.</span></p>
</li>
<li><p><span style="font-size:12px;">Vasomotor: reports of temperature asymmetry and or skin colour changes and or skin colour asymmetry.</span></p>
</li>
<li><p><span style="font-size:12px;">Pseudomotor/oedema: reports of oedema and or sweating changes and or sweating asymmetry.</span></p>
</li>
<li><p><span style="font-size:12px;">Motor/trophic: reports of decreased range of motion and or motor dysfunction (weakness tremor dystonia and or trophic changes (hair, nail, skin).</span></p>
</li>
</ol>
<p><span style="font-size:12px;">3. There is no other diagnosis that better explains the signs and symptoms.</span></p>
</td>
</tr>
</tbody>
</table>
<p align="center"><span style="font-size:12px;"><strong><em>Table 1</em></strong><em> Comparison of the different diagnostic criteria currently used to diagnose CRPS</em></span></p>
<p><span style="font-size:14px;"><strong>Chronic Regional Pain Syndrome and Chronic Pain Syndrome</strong></span></p>
<p><span style="font-size:14px;">Historically, CRPS has been referred to as Reflex Sympathetic Dystrophy (RSD), Sympathetic Dystrophy or Pseudecks atrophy. Today, CRPS may be mistakenly referred to as &lsquo;Chronic Regional Pain Syndrome&rsquo; or &lsquo;Chronic Pain Syndrome&rsquo;.</span></p>
<p><span style="font-size:14px;">While the International Taxonomy of Painful Conditions (an official publication of the International Association for the Study of Pain) does not recognise either &lsquo;Chronic Regional Pain Syndrome&rsquo; or &lsquo;Chronic Pain Syndrome&rsquo; as official diagnoses, the <em>AMA Guides to Evaluation of Permanent Impairment,</em> 5<sup>th</sup> ed, refers to &lsquo;Chronic Pain Syndrome&rsquo; as a &lsquo;term frequently used to described a painful condition with substantial psychological overlay&rsquo;. &lsquo;Chronic Pain Syndrome&rsquo; &nbsp;is essentially a fall-back position masquerading as a diagnosis &nbsp;which appears &nbsp;more acceptable than stating that the clinician is unable to find or explain a cause for pain.</span></p>
<p><span style="font-size:14px;"><strong>Considerations for independent medical examinations</strong></span></p>
<p><span style="font-size:14px;">Several points need to be considered when pursuing a claim resulting in CRPS. The most important is to instruct an appropriately qualified and experienced expert who regularly treats this condition. Secondly, consider alternate diagnoses that may be similar to and share treatments with CRPS yet may have less stringent diagnostic criteria such as neuropathic pain conditions. Thirdly, instruct your expert to consider the presence of CRPS symptoms and signs at any time following injury rather than relying upon the occasion of examination to arrive at their diagnosis.</span></p>
<p>&nbsp;</p>
<p><span style="font-size:14px;"><strong>Dr Marc Walden </strong>is a registered pain medicine physician, specialist anaesthetist, independent medical examiner and the principal of <a href="http://www.greenslopesmedicolegal.com.au/" target="_blank">Greenslopes Medicolegal</a>. </span></p>
<p><span style="font-size:14px;"><em>This is the second article in a series of three. His <a href="https://www.lawyersalliance.com.au/opinion/pain-and-psychological-conditions" target="_blank"><strong>next article</strong></a> will discuss psychological pain syndromes. </em></span></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article.&nbsp;</a></strong></p>
https://www.lawyersalliance.com.au/opinion/complex-regional-pain-syndrome-a-diagnostic-challenge-for-clinicians-ahttps://www.lawyersalliance.com.au/opinion/complex-regional-pain-syndrome-a-diagnostic-challenge-for-clinicians-aThu, 23 Feb 2017 00:00:00 +1100Pain medicine physicians and pain management programmes<p>Pain medicine is a relatively new medical speciality that can be used to assess personal injury cases where pain is a major contributing component to impairment and disability. This article outlines the specialist training, examination and expertise that distinguishes pain medicine physicians from other medical specialists and the difference between a pain medicine physician and pain management programmes (PMPs).</p>
<p><strong>Pain Medicine Physicians</strong></p>
<p>Australia was the first western country to recognise pain medicine as a medical speciality. In 1998, the Australian and New Zealand College of Anaesthetists established the Faculty of Pain Medicine and in 1999 the first fellowship examinations were conducted. Pain medicine physicians are now recognised by the post nominals FFPMNAZCA (Fellowship Faculty of Pain Medicine Australian and New Zealand College of Anaesthetists). In 2005, the Australian Medical Council recognised pain medicine as a medical specialty.</p>
<p>Before undergoing two years of training in multidisciplinary pain medicine, physicians must have already completed specialist training in another related discipline such as anaesthesia, psychiatry, internal medicine or surgery. It is therefore common for a pain medicine physician to be a psychiatrist, anaesthetist or surgeon in addition to being a pain medicine physician.</p>
<p>Pain medicine physicians have a detailed knowledge of the physiology, psychology, pathology and pharmacology of pain and are usually the clinical leaders of multidisciplinary PMPs. They are able to assess and coordinate the physical, psychological and rehabilitation needs of individuals who experience complex pain. Some pain medicine physicians further specialise in interventional (surgical) approaches to pain relief such as injections, nerve blocks and advanced pain therapies such as neuromodulation and intraspinal drug delivery systems. Some such physicians specialise in persisting paediatric and adolescent pain conditions.</p>
<p><strong>Pain Management Programmes</strong></p>
<p>PMP, sometimes referred to as cognitive behavioural therapy (CBT), are education programmes focused on individuals who are experiencing impairment and disability from persisting pain. They are usually group-based and run by a team of allied health professionals such as psychologists, occupational therapists and physiotherapists. &nbsp;PMPs assist individuals to overcome excess reliance upon health providers by teaching self-management techniques to promote independence. A pain medicine physician will usually conduct an assessment of an individual to determine their suitability for a PMP.</p>
<p><strong>Who should be referred to a Pain Medicine Physician?</strong><br />
<br />
Pain medicine physicians are well equipped to provide overall perspective and explanation of pain causation and quantum in individuals who do not conform to a straightforward model of disease, and to those whose presentation has become complicated by the development of secondary sequelae such as depression, anxiety, physical deconditioning and multiple analgesic drug use. Previously, non-surgical spinal pain, complex regional pain syndrome, neuropathic pain syndromes, analgesic drug dependency and pain complicated with psychological and behavioural amplification &nbsp;were treated by neurologists, rehabilitation physicians and psychiatrists. It is now routine for these conditions and more to be assessed and treated by pain medicine physicians.</p>
<p><span style="font-size:14px;"><strong>Conditions commonly treated by Pain Medicine Physicians</strong></span></p>
<ul><li><span style="font-size:14px;">Complex Regional Pain Syndrome</span></li>
<li><span style="font-size:14px;">Central pain sensitisation (wind-up)</span></li>
<li><span style="font-size:14px;">Spinal injury pain</span></li>
<li><span style="font-size:14px;">Phantom pain</span></li>
<li><span style="font-size:14px;">Chest pain from mesothelioma</span></li>
<li><span style="font-size:14px;">Nerve damage pain</span></li>
<li><span style="font-size:14px;">Combined pain and psychiatric disorder</span></li>
<li><span style="font-size:14px;">Fibromyalgia</span></li>
<li><span style="font-size:14px;">Chronic fatigue</span></li>
<li><span style="font-size:14px;">Spinal pain and whiplash</span></li>
<li><span style="font-size:14px;">Analgesic substance abuse</span></li>
<li><span style="font-size:14px;">Referred pain</span></li>
<li><span style="font-size:14px;">Nerve blocks</span></li>
<li><span style="font-size:14px;">Arthritic pain</span></li>
<li><span style="font-size:14px;">Neuromodulation</span></li>
<li><span style="font-size:14px;">Fear avoidance and abnormal illness behaviours</span></li>
<li><span style="font-size:14px;">Spinal drug reservoirs</span></li>
<li><span style="font-size:14px;">Drug therapy for pain</span></li>
<li><span style="font-size:14px;">Organic and non-organic pain</span></li>
</ul>
<p>&nbsp;</p>
<p><strong>Dr Marc Walden </strong>is a registered pain medicine physician, specialist anaesthetist, independent medical examiner and the principal of <a href="http://www.greenslopesmedicolegal.com.au/" target="_blank">Greenslopes Medicolegal</a>.</p>
<p><em>This is the first article in a series of three. His <strong><a href="https://www.lawyersalliance.com.au/opinion/complex-regional-pain-syndrome-a-diagnostic-challenge-for-clinicians-a" target="_blank">next article</a></strong> will discuss the often controversial and difficult diagnosis of Complex Regional Pain Syndrome. His <a href="https://www.lawyersalliance.com.au/opinion/pain-and-psychological-conditions" target="_blank"><strong>third article</strong></a> will discuss pain and psychological issues.</em></p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/pain-medicine-physicians-and-pain-management-programmeshttps://www.lawyersalliance.com.au/opinion/pain-medicine-physicians-and-pain-management-programmesThu, 16 Feb 2017 00:00:00 +1100Nervous shock &amp; psychiatric claims after the loss of a child<p><span style="font-size:14px;">As a recent first-time parent, the thought of losing my child is totally incomprehensible. It brings a tear to my eye to even think of it.</span></p>
<p><span style="font-size:14px;">As such, I cannot begin to imagine the despair suffered by the parents of the infant, John, who <a href="http://www.smh.com.au/national/health/one-baby-dead-another-in-critical-condition-after-being-given-nitrous-oxide-instead-of-oxygen-at-bankstown-hospital-20160725-gqdhs9.html" target="_blank">tragically died</a> in 2016 as a result of being erroneously treated with nitrous oxide instead of oxygen. This incident occurred in the neonatal resuscitation unit at Bankstown-Lidcombe Hospital (NSW) due to an alleged incorrect installation of gas pipes.</span></p>
<p><span style="font-size:14px;">I am sure that every parent, if confronted with such a horrific situation, would feel no monetary sum could ever make up for their loss. However, I imagine that many would rightly believe that they should be entitled to claim compensation from the negligent parties whose actions or inactions have caused the death of their child.</span></p>
<p><span style="font-size:14px;">However, the law in Australia as it currently stands in relation to the entitlement of such grief-stricken parents to claim compensation has the capacity to compound a parent&rsquo;s grief in such circumstances and generate more than justified contempt towards the legal system. Particularly given the widely accepted view across the community would be that entitlement to compensation in such horrific circumstances would be considered both reasonable and appropriate.</span></p>
<p><span style="font-size:14px;">Currently, the law stipulates that parties, such as the parents of a child who dies as a result of another party&rsquo;s negligence, can recover damages only if they can establish that they suffered a recognisable psychiatric illness as a result of the death. This is in circumstances where there is no entitlement to a loss of dependency claim.</span></p>
<p><span style="font-size:14px;">These claims, commonly referred to as nervous shock claims, can be a particularly challenging process for traumatised parents. A parent must be able to demonstrate that they suffer from a psychiatric illness such as depression, an adjustment disorder or post-traumatic stress disorder in order to succeed with such a claim.</span></p>
<p><span style="font-size:14px;">If a parent is not diagnosed as suffering a psychiatric illness, they will not be entitled to recover damages in a nervous shock claim for their bereavement alone.</span></p>
<p><span style="font-size:14px;">This represents a glaring hole in the law in Australia and contradicts a fundamental ethos of the law, by potentially failing to ensure that a victim of negligence is entitled to compensation.</span></p>
<p><span style="font-size:14px;">It is my view that the law is in need of urgent reform to allow the payment of bereavement damages, in addition to the existing legal rights to compensation through a nervous shock and/or dependency claim in cases where a loved one has died prematurely due to the clear negligence of a third party.</span></p>
<p><span style="font-size:14px;">Such awards could be made without there being any need to go through the process of establishing that a psychiatric illness had been sustained.</span></p>
<p><span style="font-size:14px;">Bereavement awards of this nature are currently paid in the United Kingdom and in certain US states and are aimed at providing a regulated sum of compensation to serve as recognition of&nbsp;the grief&nbsp;and&nbsp;trauma suffered, as well as a means of public and legal recognition that the death was wrongful.</span></p>
<p><strong><img alt="" src="/sb_cache/blog/id/473/f/Kaine Shanahan - Gouldson Legal pic - cropped.jpg" style="border-width: 1px; border-style: solid; margin: 1px 10px; float: left; width: 150px; height: 159px;" /></strong></p>
<p><strong>Kaine</strong><strong> Shanahan </strong>is an Associate at&nbsp;<a href="http://www.gouldson.com.au/" target="_blank">Gouldson Legal</a>, a Queensland personal injury plaintiff litigation firm.</p>
<p>Kaine has practised since 2007 in NSW, London and Queensland, predominantly in the area of personal injury law.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/nervous-shock-psychiatric-claims-after-the-loss-of-a-childhttps://www.lawyersalliance.com.au/opinion/nervous-shock-psychiatric-claims-after-the-loss-of-a-childThu, 09 Feb 2017 00:00:00 +1100Interim ban on ethanol burners after a spate of accidents &amp; injuries <p>Late last year there were a number of announcements about the <a href="https://www.qld.gov.au/law/your-rights/consumer-rights-complaints-and-scams/product-safety-for-consumers/safety-advice-and-warnings/around-the-home/ethanol-burners/">interim, 60-day, banning</a>&nbsp;of ethanol burners in Queensland, and across other states and territories. The <a href="http://www.9news.com.au/national/2016/12/21/14/34/queensland-government-announces-interim-ban-on-ethanol-burners-after-spike-in" target="_blank">ban follows 38 incidents in Queensland and 117 in total across Australia since 2010</a>&nbsp;in which many Australians suffered injuries &ndash; including a number of very serious burn injury cases.</p>
<p>The victims include a <a href="http://www.9news.com.au/national/2016/12/21/14/34/queensland-government-announces-interim-ban-on-ethanol-burners-after-spike-in" target="_blank">28-year-old Western Australian woman</a>&nbsp;who suffered serious burns to her face and body when an ethanol burner exploded in her backyard. A similar incident in Queensland also left two others with serious, life-altering burn injuries. Our firm acts for claimants who have sustained terrible burn injuries as a result of these incidents.</p>
<p>Typically, <a href="http://www.9news.com.au/national/2016/12/21/14/34/queensland-government-announces-interim-ban-on-ethanol-burners-after-spike-in" target="_blank">the incidents occur when the burners are being refilled</a>&nbsp;while they are still very hot or have a residual flame that is hard to detect. It&rsquo;s in these instances when the ethanol vapour can explode, resulting in burns and other injuries.</p>
<p>The ban sees the removal of the burners from sale by all retailers and imposes hefty fines on those who don&rsquo;t comply. Individuals who continue to sell (or resell) the burners will face penalties of up to $220,000, while corporations will face up to $1.1m in fines.</p>
<p>The ban can be extended or made permanent but only time will tell which will be the case. Given the number of incidents, we can only hope that the ban is made permanent throughout Australia.</p>
<p>For the individuals who have suffered in these accidents, the aftermath can be life-altering &ndash; for more serious cases there are ongoing surgeries, compression wear and a sombre array of other life-long impacts.</p>
<p>Given the numerous ongoing medical expenses, as well as impacts upon working ability, victims often face huge financial burdens on top of the physical and mental trauma. Given these circumstances, burn victims and their families often look to possible avenues for compensation.</p>
<p>In the majority of these cases there are multiple parties against whom the claim can be brought. These can include the retailer, importer and manufacturer. If the accident occurred while the victim was at someone else&rsquo;s home, there is typically also a claim made against the home owner and the insurer of that person&rsquo;s property, or the occupier of the home.</p>
<p>In these instances, as long as there is a home and contents policy in place, it is not the individual or host who is required to pay the compensation, rather their home and contents insurer.</p>
<p>Given the ban, and the much publicised problems with these types of burners, the question of how far a home owner&rsquo;s duty extends is an important discussion point.</p>
<p>Ordinarily, in order to succeed in a claim for damages against the home owner, a potential claimant would need to prove that the home owner knew that the burners were likely to explode, that they had failed to follow procedures set for refuelling the burner, or give proper instruction to a person who was doing the refuelling.</p>
<p>But now, with the ban in place, the situation may be much more like a strict liability type of situation, where the home owner has continued to use the burner despite the ban on retailers selling and the very strong warning that owners stop using the burners.</p>
<p>In the event that the ban is made permanent, there may be some impact upon the claims process with respect to the possibility of criminal charges, and the impact these may have upon home and contents insurances policies and indemnity for such claims against the policy.<br />
&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/467/f/Faran Gouldson - Gouldson Legal pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 125px; height: 125px;" /></strong><strong>Faran Gouldson </strong>is the sole director of&nbsp;<a href="http://www.gouldson.com.au/" target="_blank">Gouldson Legal</a>, a Queensland personal injury plaintiff litigation firm which was established in 1998.</p>
<p>He has over 20 years&rsquo; experience in Queensland personal injury law and understands the challenges that clients face when approaching compensation claims. Faran has worked with thousands of injured Queenslanders and now specialises predominantly&nbsp;in especially complex and catastrophic claims.</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/interim-ban-on-ethanol-burners-after-a-spate-of-accidents-injuries-100https://www.lawyersalliance.com.au/opinion/interim-ban-on-ethanol-burners-after-a-spate-of-accidents-injuries-100Wed, 25 Jan 2017 00:00:00 +1100Teen burn victim claims against party host<p>In 2013, a 16-year-old girl suffered third degree burns to 42% of her body at a house party when a teenage boy poured an accelerant on to an open fire at a house party.</p>
<p>It was a horrific accident which left the girl with extreme facial scarring and burns to her body &ndash; so severe that she must still wear a whole body pressure garment for 23 hours a day. Her male friend also suffered serious burns.</p>
<p>In July 2016, the <em>Brisbane Times</em> reported that the young woman is attempting to claim almost $12m in compensation for her ordeal.</p>
<p><a href="http://www.brisbanetimes.com.au/queensland/burns-victim-sues-house-party-host-for-12m-20160722-gqbjqo.html">The article</a>&nbsp;described the victim as being &lsquo;engulfed by a sheet of flame&rsquo;.</p>
<p>The unfortunate reality is that such injuries are not uncommon in social situations.&nbsp;Open fires, as well as the increased popularity of ethanol burners, are leading to an increase in severe and excruciating burns.&nbsp;Even if these incidents could be described as &lsquo;accidents&rsquo; per se, there is still a strong possibility in many cases that home owners or residents of the premises may be liable for these horrific burn injuries.</p>
<p>At common law, the law is quite clear that occupiers owe a duty of care to guests in their home &ndash; such that guests should be free from risk of injury.&nbsp; In the case referred to above, it was argued that the party of teenage minors was supposed to have a supervising adult.&nbsp;</p>
<p>It was alleged that the mother of the victim asked the adult occupier of the home whether there would be any adult supervision.&nbsp; The mother was allegedly informed that supervision would be provided, but it wasn&rsquo;t.</p>
<p>In this instance, the occupier&rsquo;s home and contents policy was relied on to compensate the injured girl for the injuries she sustained.&nbsp; Whether adult supervision would have prevented or altered the outcome is to be decided. But certainly the argument exists that the home owner was negligent to some degree and their failure to supervise contributed to the events resulting in the injury.</p>
<p>The increase in incidents of this nature has resulted in an increased reliance on home and contents policies to compensate the injured parties.&nbsp;This reinforces the need for all homeowners and residents to seriously consider their home and contents insurance, especially if none are currently in place.</p>
<p>Interestingly, the negligent &lsquo;act&rsquo; of the occupier was more of a failure to act, or a lack of supervision, than an action.&nbsp;Even if all the party guests had been adults, it could still be argued that the occupier failed in their duty to ensure that guests were free from risk of injury.</p>
<p>The process of pursuing compensation in Queensland for injuries sustained while on the premises of another are relatively streamlined by the <a href="http://www.austlii.edu.au/au/legis/qld/consol_act/pipa2002314/" target="_blank"><em>Personal Injuries Proceedings Act </em>2002 (Qld)</a>.</p>
<p>The biggest hurdle for many injured individuals in these circumstances is the reluctance to claim against the friend or family member at whose home the incident occurred.</p>
<p>However, as long as the host has insurance in place, the claim will be conducted against their insurer.&nbsp; In these circumstances, especially in more serious incidents like the case described above, there is a clear need for compensation. Without a claim, the victim would bear the considerable ongoing costs for rehabilitation, treatment and medication.</p>
<p>While these can be uncomfortable situations for everyone involved, the victim&rsquo;s future and needs are something that need to be seriously considered &ndash; in many instances, a claim is their best option to move forward.</p>
<p>Despite the setting in which these injuries are sustained, and the victims&rsquo; reluctance to consider pursuing compensation arising out of social situations, legal advice is the best way for injured parties to determine if seeking compensation for their injuries is an option.</p>
<p><strong><img alt="" src="/sb_cache/blog/id/475/f/Carl Hughes - Gouldson Legal pic - cropped.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 150px; height: 143px;" /><br />
Carl Hughes</strong> is Senior Associate at <a href="http://www.gouldson.com.au/" target="_blank">Gouldson Legal</a>, a Queensland personal injury plaintiff litigation firm. He has been acknowledged as one of Queensland&rsquo;s leading asbestos compensation lawyers, having spent the majority of his career working on personal injuries claims including dust diseases claims.</p>
<p>&nbsp;</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/teen-burn-victim-claims-against-party-hosthttps://www.lawyersalliance.com.au/opinion/teen-burn-victim-claims-against-party-hostThu, 19 Jan 2017 00:00:00 +1100The first interview with injured clients<p><span style="font-size:14px;">I&rsquo;ve interviewed thousands of injured clients, some with minor injuries, and others with the worst injuries imaginable. Every interview is different.</span></p>
<p><span style="font-size:14px;">A while ago my marketing co-ordinator referred me to a great <a href="https://www.linkedin.com/pulse/your-first-date-make-client-meeting-last-the-happy-family-lawyer" target="_blank">LinkedIn article</a>&nbsp;written aptly by the &lsquo;The Happy Family Lawyer&rsquo;, Clarissa Rayward. It details her first meetings with individuals facing family law proceedings.</span></p>
<p><span style="font-size:14px;">It got me thinking about the first interview process for our clients &ndash; who have sustained a personal injury &ndash; which goes a little something like this:</span></p>
<ol><li><span style="font-size:14px;">A new client approaches the firm.</span></li>
<li><span style="font-size:14px;">The new client speaks directly to a lawyer.</span></li>
<li><span style="font-size:14px;">That same lawyer then arranges to see the client, and fingers crossed, that client agrees that my lawyer and our firm is who they want to help them with their claim.</span></li>
</ol>
<p><span style="font-size:14px;">In her article, Clarissa Rayward refers to another lawyer&#39;s&nbsp;description of the first interview&nbsp;as being &lsquo;<a href="http://www.lawpracticetipsblog.com/2005/05/the_initial_cli.html" target="_blank">just like a first date</a>&rsquo;.</span></p>
<p><span style="font-size:14px;">I&rsquo;ve had the odd first date and on reflection, there are some similarities.</span></p>
<p><span style="font-size:14px;">No matter how prepared we are as a professional, or how much information we have from our initial discussions, the first interview (<a href="http://www.paramount.com/movies/forrest-gump" target="_blank">as Forrest Gump&nbsp;would say</a>) is like a box of chocolates: you never know what you&rsquo;re going to get.</span></p>
<p><span style="font-size:14px;">Likewise for the injured client; no matter what research they&rsquo;ve done, or how many people they&rsquo;ve spoken to about the process, they just don&rsquo;t know what the lawyer is going to be like.</span></p>
<p><span style="font-size:14px;">In fact, that first meeting is more like a <em>blind</em> first date!</span></p>
<p><span style="font-size:14px;">I imagine that most lawyers learned little about interviewing until they found themselves in a room with their first real client.</span></p>
<p><span style="font-size:14px;">It is the most critical client meeting you can have, because it can determine the relationship upon which every aspect of your future dealings are built. The aim is for the client to feel confidence and trust in you.</span></p>
<p><span style="font-size:14px;">In my view, you can achieve this aim by following these three steps:</span></p>
<ol><li><span style="font-size:14px;">Listen, listen, and listen some more.</span></li>
<li><span style="font-size:14px;">Based upon what you&rsquo;ve heard, ask the right questions.</span></li>
<li><span style="font-size:14px;">Based upon the answers, provide the client with information in a way that they understand, that provides clear answers.</span></li>
</ol>
<p><span style="font-size:14px;">At the first step, try NOT to be a lawyer. Forget that there is a process that you want to go through and a series of questions you need to ask.</span></p>
<p><span style="font-size:14px;">Let the client tell you their story. Help them feel understood, rather than interrogated.</span></p>
<p><span style="font-size:14px;">It&rsquo;s surprisingly easy to forget that not every client is looking for the hard and fast legal answers. They could be in that room for any number of reasons. Perhaps this is the first time that they have ever spoken with a lawyer.</span></p>
<p><span style="font-size:14px;">Once you&rsquo;ve listened, understood, and respected the needs of the client, you are well positioned to ask the right questions &ndash; and will likely get more detailed, helpful answers.</span></p>
<p><span style="font-size:14px;">Having completed steps 1 and 2, as a lawyer you are well equipped to provide step 3. By doing it in this order you&rsquo;ll likely be giving the client what they need and want, and not simply getting what you, the lawyer, need and want.</span></p>
<p><span style="font-size:14px;">If you communicate with those factors in mind, it will go a long way to securing the goals I have set out above.</span></p>
<p><span style="font-size:14px;">I have often completed an initial interview with a client and walked out with scarcely a note written on my notepad, but having created a relationship, built confidence, trust, and having broken down the barriers that inevitably exist between a new client and their lawyer.</span></p>
<p><span style="font-size:14px;"><strong><img alt="" src="/sb_cache/blog/id/467/f/Faran Gouldson - Gouldson Legal pic.jpg" style="border-width: 1px; border-style: solid; margin: 3px 10px; float: left; width: 125px; height: 125px;" />Faran Gouldson </strong>is the sole director of&nbsp;<a href="http://www.gouldson.com.au/" target="_blank">Gouldson Legal</a>, a Queensland personal injury plaintiff litigation firm which was established in 1998. He has over 20 years&rsquo; experience in Queensland personal injury law and understands the challenges that clients face when approaching compensation claims. Faran has worked with thousands of injured Queenslanders and now specialises predominantly&nbsp;in especially complex and catastrophic claims.</span></p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/the-first-interview-with-injured-clientshttps://www.lawyersalliance.com.au/opinion/the-first-interview-with-injured-clientsThu, 12 Jan 2017 00:00:00 +1100How is the PI compensation process affecting your client’s recovery?<p>The experience of a long, complex and at times adversarial legal process pursuing personal injury (PI) compensation with the need for multiple health assessments and delays in receiving funds has been shown to increase stress and recovery time for injured people.&nbsp;There is a growing body of evidence that people who seek compensation can experience worse symptoms and longer recovery times than people who do not,&nbsp;with people six years post-injury still reporting significantly higher levels of disability, anxiety, depression and lower quality of life.</p>
<p><strong>The impact of being &lsquo;in limbo&rsquo;&ndash; the asylum seeker analogy</strong></p>
<p>With over a decade of experience in supporting and advocating for people who are waiting long periods for a migration decision, I wondered if my experience would translate to working with people seeking personal injury compensation. Interestingly, the literature shows striking similarities between recovery for people with a personal injury and people seeking asylum.&nbsp;Both groups are in limbo: their trauma is exacerbated by the lengthy nature of the legal process and they cannot begin to recover fully from their trauma until their legal matters are finalised.</p>
<p>Asylum seekers are in limbo until they obtain permanent resettlement in a safe country. Similarly, people seeking PI compensation are in limbo, waiting extended periods for a final legal decision. People seeking asylum cannot commence recovery&nbsp;until it is physically and psychologically safe to do so&nbsp;and until the ongoing stress of possible return to the country of their persecution is over.&nbsp;The need to prove their refugee status by repeatedly having to describe the extent of their physical and psychological injuries resulting from persecution keeps their persecution and injury at the forefront of their minds. The person seeking PI compensation has the stress of not knowing if their claim will be successful and the need to repeatedly prove the extent of their trauma (injury) over many years. This keeps their focus on their disability rather than on their recovery.</p>
<p><strong>How do&nbsp;I support clients during the personal injury compensation process?</strong></p>
<p>As a case manager for people seeking asylum, my focus was on helping people feel safe by providing consistent practical and emotional support and building a network of social connections. On reflection, I realised the underlying practice issues were the same for my PI clients: &ldquo;How do I build their strength when they do not have the closure of a legal decision, and future support is predicated on the ongoing and full expression of their injuries?&rdquo; Working with PI clients, I provide regular emotional debriefing and help build resilience&nbsp;by identifying their personal strengths, with a focus on what gives them joy in life. I build a network of practical and social connections around them and their families, which includes finding them a suitable GP and access to other appropriate healthcare and rehabilitation providers.</p>
<p><strong>How lawyers can support clients&rsquo; recovery&ndash; 5 steps you can take today</strong></p>
<p>PI lawyers already support their clients&rsquo; recovery by taking their injury claims seriously, by fighting to overcome any injustice that has occurred and by negotiating appropriate compensation for their injury. Clients consider support to be fundamental to their wellbeing.&nbsp;To improve longer-term recovery, it is important to help clients to find a balance between expressing the extent of their injury to ensure appropriate financial compensation, and focusing on recovery to improve their chances of long-term wellbeing.</p>
<p>As a lawyer, you can support your clients&rsquo; recovery by encouraging them to:</p>
<ol><li><strong>find a supportive GP</strong> who understands traumatic injuries and build a long-term relationship;</li>
<li><strong>establish positive relationships</strong> with people who will be key to supporting their mental health and wellbeing &ndash; family, friends, carers, support workers, local community groups, including injury-specific peer support organisations such as government brain injury units or disability advocacy peak bodies;</li>
<li><strong>employ&nbsp;(or contract) a social worker at your firm</strong> to work confidentially and independently with clients who experience high-stress levels associated with a claim;<strong><span style="font-size:10px;">[1]</span></strong></li>
<li><strong>suggest the client see a mental health professional</strong>&nbsp;to talk about the impact of the injury, to reframe their thinking to accept and incorporate their injury into their life;<strong><span style="font-size:10px;">[2]</span></strong>&nbsp;and</li>
<li><strong>get financial advice early </strong>from a financial adviser with experience in the PI field to assist with lifetime planning.<br />
&nbsp;</li>
</ol>
<p><strong><span style="font-size:14px;"><img alt="" src="/sb_cache/blog/id/477/f/Sarah Grealy.jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; float: left; width: 125px; height: 126px;" />Sarah Grealy </span></strong><span style="font-size:14px;">is the Wellbeing Advocate with Lyndhurst Family Advisory and a member of the ALA. She worked with refugees and asylum seekers for many years and has a comprehensive knowledge of psychological and physical trauma recovery. Sarah&rsquo;s role at Lyndhurst was created by Director Charlie Fraser who, in over 10 years in PI financial management, saw that client&rsquo;s psychosocial needs were not best addressed by lawyers or financial managers.</span></p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p><span style="font-size:12px;"><strong>Notes</strong>:</span></p>
<p><span style="font-size:12px;">[1] Two Australian PI law firms currently employ social workers to support clients with managing their stress and other psychosocial issues. Clients are referred internally by lawyers and the social worker works independently with the clients. They develop a discharge plan for clients to ensure they are linked to community-based support&nbsp;if they have ongoing needs once their matter is settled.</span></p>
<p><span style="font-size:12px;">[2] This can be via a government funded (Access to Allied Psychological Services) ATAPS program, sourced via their Primary Health Network.</span></p>
<p><span style="font-size:12px;"><strong>References:</strong></span></p>
<p><span style="font-size:12px;">Gabbe&nbsp;BJ, Harris&nbsp;IA, Collie&nbsp;A and Cameron&nbsp;PA, &#39;<a href="https://www.mja.com.au/system/files/issues/193_03_020810/letters_020810_fm-7.pdf">Does access to compensation have an impact on recovery outcomes after injury?</a>&#39; <em>Medical Journal of Australia,</em>&nbsp;193(3), 2010, pp188.</span></p>
<p><span style="font-size:12px;">American Trauma Society,&nbsp;&#39;<a href="http://www.traumasurvivorsnetwork.org/traumapedias/239">Mental and Emotional Recovery Post-Injury&#39;</a><u>,</u>&nbsp;T<em>rauma Survivors Network website</em>.</span></p>
<p><span style="font-size:12px;">Grant GM, O&rsquo;Donnell&nbsp;ML, Spittal&nbsp;MJ, Creamer&nbsp;M &amp; Studdert&nbsp;DM,&nbsp;&#39;Relationship Between Stressfulness of Claiming for Injury Compensation and Long-term Recovery&#39;<em>,</em>&nbsp;<em>JAMA Psychiatry </em>71(4), 2014, pp446-53.</span></p>
<p><span style="font-size:12px;">Koehler&nbsp;R, Wilhelm&nbsp;EE and Shoulson&nbsp;I (eds) &#39;Methods&#39; in&nbsp;<a href="https://www.nap.edu/read/13220/chapter/6#68"><em>Cognitive Rehabilitation Therapy for Traumatic Brain Injury. Evaluating the evidence</em></a> (The National Academies Press, 2011), 115.</span></p>
<p><span style="font-size:12px;">Thomas&nbsp;C,&nbsp;&#39;<a href="http://bjp.rcpsych.org/content/180/5/392">Psychological consequences of traumatic injury</a>&#39;,&nbsp;<em>British Journal of&nbsp;Pscychiatry</em>,&nbsp;180(5), 2002,&nbsp;pp392-3.</span></p>
<p><span style="font-size:12px;">Motor Accident Insurance Commission, The University of Queensland and Griffith University,&nbsp;&#39;<a href="http://recover.edu.au/mental-health/">Mental Health</a><em>&#39;,</em>&nbsp;<em>Recover Injury Research Centre website</em>.</span></p>
<p><span style="font-size:12px;">Queensland Government (Queensland Health),&nbsp;&#39;<a href="https://www.health.qld.gov.au/abios/asp/support_families">Acquired&nbsp;Brain Injury:&nbsp;Support for Families</a>&#39;,<em>&nbsp;Acquired Brain Injury Outreach Service (ABIOS) website</em>.</span></p>
<p><span style="font-size:12px;">Newman, L and Harris A, &#39;<a href="http://earlytraumagrief.anu.edu.au/files/Refugee%20Tipsheet.pdf">Refugees and asylum seekers: supporting recovery from trauma</a>&#39;, 2016,&nbsp;<em>TheTrauma and Grief Network.</em></span></p>
<p><span style="font-size:12px;">Manitoba Trauma Information &amp; Education Centre, &#39;<a href="http://trauma-recovery.ca/recovery/phases-of-trauma-recovery/">Phases of Trauma Recovery</a>&#39;,&nbsp;<em>Trauma Recovery website</em>.</span></p>
<p><span style="font-size:12px;">Rothschild B,&nbsp;&nbsp;&#39;<a href="https://www.psychotherapynetworker.org/blog/details/378/applying-the-brakes">Applying the brakes: In Trauma Treatment, Safety is Essential</a>&#39;, 2014,&nbsp;<em>Psychotherapy Networker website.</em></span></p>
<p><span style="font-size:12px;">Murray KE, Davidson GR, Schweitzer RD, &#39;<a href="http://eprints.qut.edu.au/59164/1/APS_Refugee-Lit-Review.pdf">Psychological Wellbeing of Refugees Resettling in Australia</a>&#39;, August 2008,&nbsp;<em>Australian Psychological Society</em>.</span></p>
<p><span style="font-size:12px;">Mind Tools Editorial Team, &#39;<a href="https://www.mindtools.com/pages/article/resilience.htm">Developing Resilience:&nbsp;Overcoming and Growing From Setbacks</a>&#39;,&nbsp;<em>Mind Tools website.</em></span></p>
<p><span style="font-size:12px;">Du Plooy L,&nbsp;<a href="https://www.mauriceblackburn.com.au/media/1015/Outreach_social_work_service_making_a_difference_to_law_firm_clients_AASW_National_Bulletin_Summer_2013.pdf"><em>Outreach social work service making a difference to law firm clients</em></a><em>, </em>Summer&nbsp;2013, <em>Australian Association of Social Workers&nbsp;National Bulletin,&nbsp;</em>pp26-7.</span></p>
<p><span style="font-size:12px;">Myles S, &lsquo;<a href="http://www.ijpsy.com/volumen4/num3/96/understanding-and-treating-loss-of-sense-EN.pdf">Understanding and Treating Loss of Sense of Self Following Brain Injury: A Behavior Analytic Approach</a>&rsquo;, <em>International Journal of Psychology and Psychological Therapy</em>, Vol 4(3), 2004, pp87-504.</span></p>
<p><span style="font-size:12px;">Lyndhurst Family Advisory, Private communications, 2016.</span></p>
https://www.lawyersalliance.com.au/opinion/how-is-the-pi-compensation-process-affecting-your-clients-recoveryhttps://www.lawyersalliance.com.au/opinion/how-is-the-pi-compensation-process-affecting-your-clients-recoveryWed, 07 Dec 2016 00:00:00 +1100Liability to entrants to the family castle<p>The Supreme Court of Queensland&rsquo;s decision in <a href="http://www.austlii.edu.au/au/cases/qld/QSC/2016/90.html" target="_blank"><em>Chandler v Silwood </em>[2016] QSC 90</a>, delivered by Holmes CJ and <a href="http://www.austlii.edu.au/au/cases/qld/QSC/2016/120.html">recently upheld on appeal</a>, further highlights the duty of care owed by owner/occupiers of a family homes towards those lawfully entering the property.</p>
<p>By way of background, at approximately 8:30pm on 9 September 2008, Ms Kayleen Chandler arrived at the residence of her former partner, Mr Clive Silwood, for a pre-arranged drop off of their two&ndash;week-old baby.</p>
<p>On arrival at Mr Silwood&#39;s residence, Ms Chandler got out of her car and made her way towards the entrance of the property, which consisted of a small tiled alcove area and two tiled steps leading to the front door. Ms Chandler gave evidence that upon arrival, there were no lights on within the property or outside the front door of the house.</p>
<p>On Ms Chandler&rsquo;s approach to the front door, she slipped on the wet surface as she stepped from the tiled area to the lower of the two stairs. In trying to stop herself from falling, Ms Chandler put her outstretched right arm through the bottom glass panel of the front door, resulting in a severed artery which caused profuse bleeding. Ms Chandler was subsequently taken to hospital by ambulance where she underwent urgent surgery.</p>
<p>It later became apparent that Mr Silwood had, earlier in the day in question, been washing bat droppings off his house in the vicinity of the entry to the property and at the time had been unconcerned by the amount of water falling onto the stairs and tiles . At trial, Mr Silwood gave evidence that the stairs at the time of the fall might well have still been wet, but he did not know for sure. The Defendant also gave evidence that he had owned the property for approximately eight years and during this period he had not had any prior difficulty with the steps in question.</p>
<p>Liability remained contested at trial; however, quantum had been agreed between the parties in the sum of $650,000. There was no dispute that Mr Silwood as occupier of the property owed a duty to the plaintiff as a lawful entrant to take reasonable care to prevent injury to her. Ms Chandler alleged that Mr Silwood had breached that duty of care through, <em>inter alia</em>, failing to: turn on the outdoor light so that any water was apparent, warn the plaintiff that the area could be wet and through failing to ensure that the steps were dry.</p>
<p>Mr Silwood&rsquo;s insurer denied the allegations of negligence and also alleged that the incident was the result of Ms Chandler&rsquo;s own negligence caused by her intoxication and inadvertence, which was not accepted by the court.</p>
<p>The court ultimately accepted that there was residual moisture on the stairs and the risk of injury associated with this was foreseeable and not insignificant, particularly when it was also considered that the area was in darkness. Her Honour found that a reasonable person in Mr Silwood&rsquo;s position was required to take precautions and ought to have <em>&rsquo;made sure the stairs were dry or at least warned Ms Chandler&hellip;that they might be wet and should be taken with care, and would certainly have made sure that the light was on&rsquo;.</em></p>
<p>This decision is somewhat similar factually and in result to the recent decision of the New South Wales Court of Appeal in <a href="http://www.austlii.edu.au/au/cases/nsw/NSWCA/2015/330.html" target="_blank"><em>Schultz v McCormack </em>[2015] NSWCA 330</a><em>. </em>In this instance, the court found the home owners liable for injuries sustained by a dinner guest who slipped and fell on the tiles of a partially covered porch, which had become wet following rainy and windy conditions earlier in the evening, resulting in his sustaining an ankle fracture which required fusion.</p>
<p>The Court of Appeal determined that the home owners owed the entrants to their home a duty to take reasonable care to avoid a foreseeable risk of injury, and that they had breached that duty through their failure to warn the appellant that the porch was wet and slippery and through failing to provide a non-slip mat to address the issue created by the wet and slippery tiles. In reaching their decision, the critical finding of the Court related to the inferred constructive knowledge of the relevant risk by the homeowners.</p>
<p>Both of these cases demonstrate the duty upon residential property owners to take action against risks of which they ought to have known. It can be seen as a move from the position adopted by the courts in a number of previous cases, which found that the occupier of a domestic property was not required to address and/or warn of common dangers within the domestic setting.</p>
<p><strong><img alt="" src="/sb_cache/blog/id/473/f/Kaine Shanahan - Gouldson Legal pic - cropped.jpg" style="border-width: 1px; border-style: solid; margin: 1px 10px; float: left; width: 125px; height: 133px;" /></strong></p>
<p><strong>Kaine</strong><strong> Shanahan </strong>is an Associate at&nbsp;<a href="http://www.gouldson.com.au/" target="_blank">Gouldson Legal</a>, a Queensland personal injury plaintiff litigation firm.</p>
<p>Kaine has practised since 2007 in NSW, London and Queensland, predominantly in the area of personal injury law.</p>
<p>&nbsp;</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/liability-to-entrants-to-the-family-castlehttps://www.lawyersalliance.com.au/opinion/liability-to-entrants-to-the-family-castleWed, 30 Nov 2016 00:00:00 +1100GP chaperones – is a review warranted?<p>The need for chaperones for medical practitioners in private practice has received a lot of media attention in the past few weeks.&nbsp; With attention-grabbing titles such as <em>&ldquo;Chaperone ordered for Canberra GP accused of &ldquo;grooming&rdquo; female patient&rsquo;</em>[1], and <em>&lsquo;Darwin doctor banned from examining women without supervision&rsquo;</em>[2], one would be forgiven for believing there was an epidemic.&nbsp;</p>
<p>The Medical Board of Australia and Australian Health Practitioner Regulation Agency (AHPRA) recently stated that they are commissioning an independent review of the chaperone restrictions currently used, stating that their primary focus is one of patient and public safety.[3]&nbsp;</p>
<p>The Medical Board of Australia&rsquo;s focus is to ensure that practitioners are <em>&ldquo;suitably trained to practise in a competent and ethical manner&rdquo;</em>.[4]&nbsp;</p>
<p>This article looks at the current protocol and whether the review of these restrictions is warranted.</p>
<h4><strong>Current Protocol</strong></h4>
<p>When allegations have been made against a practitioner and they are under investigation, chaperone restrictions can be placed on their registration.&nbsp; These restrictions can also be included in orders made by a panel, tribunal or court.[5]</p>
<p>When a practitioner requires a chaperone, the chaperone must be physically present and directly observe all <em>contact</em> with patients.&nbsp; &lsquo;Contact&rsquo; has been defined by AHPRA to include:</p>
<ul><li>consultations;</li>
<li>interviews;</li>
<li>examinations;</li>
<li>assessments;</li>
<li>prescribing for;</li>
<li>advising;</li>
<li>treating; or</li>
<li>otherwise seeing a patient whether in person or via communication device.</li>
</ul>
<p>Under the protocol, there are requirements to be followed by the practitioner including, for example, notifying private health insurers of the restrictions and providing acknowledgements to AHPRA that Medicare can be contacted to monitor compliance with this restriction.[6] &nbsp;AHPRA can also carry out random practice inspections.</p>
<p>A chaperone log is required to be completed in ink, detailing every patient seen and what was observed which is required to be signed by the patient and the chaperone.</p>
<p>Notification setting out the requirements for the presence of the chaperone is required to be displayed in the practitioner&rsquo;s waiting room.</p>
<p>AHPRA confirms that chaperones are <em>required </em>to be:</p>
<ul><li>a registered health practitioner without restrictions; and</li>
<li>over the age of 18 years.</li>
</ul>
<p>Further, that chaperones <em>should not</em> be:</p>
<ul><li>a relative;</li>
<li>a friend;</li>
<li>a direct employee; or</li>
<li>a person in direct contractual or financial relationship with the practitioner.</li>
</ul>
<h4><strong>Issues with the Current Protocol</strong></h4>
<p>The current protocol states that:<em> &lsquo;prior to any contact being made&rsquo;</em> with the patients, <strong>the practitioner </strong>or a staff member should notify the patient of the chaperone restrictions.[7]&nbsp; If the practitioner makes contact with the patients without notifying them of their chaperone restrictions, they are immediately in breach of the restrictions imposed on them.&nbsp; Not notifying the patient of the reason for the chaperone potentially puts that patient at risk.&nbsp; If a patient is not aware of a risk they face, how can they protect themselves?</p>
<p>Further, a practitioner is not required to inform the patient why the chaperone must be present.&nbsp;</p>
<p>The present protocol therefore relies on the practitioner being an honest person who complies with all the reporting requirements as requested by AHPRA and t also involves the chaperone when required. If an allegation has been made against the practitioner and there is a need for a chaperone, is the practitioner&rsquo;s honesty not already in doubt?</p>
<p>Patients place a lot of trust in their practitioners.&nbsp; The position of trust between patient and doctor is extremely important and influential.&nbsp; Patients tend to follow the instructions of their practitioners and are quite often in a vulnerable condition.&nbsp; They trust that the examination they are required to undergo is warranted, that the diagnosis is correctly established and that the advice given to them is correct.&nbsp;</p>
<h4><strong>Is a review warranted?</strong></h4>
<p>Presently in Australia, there are 47 practitioners who have chaperoning restrictions, approximately 0.04 per cent of registered practitioners.[8]&nbsp; Most of these cases are related to sexual assault, with a few related to drug use.</p>
<p>However, it appears from cases which have surfaced in the media, particularly in relation to sexual assault, that if a practitioner is likely to offend it is possible for them to do so even if a chaperone is present. &nbsp;&nbsp;Chaperones&rsquo; presence does not seem to prevent practitioners from acting unprofessionally.&nbsp; &nbsp;&nbsp;</p>
<p>In the past year, a neurologist is alleged to have sexually assaulted numerous patients over a period of time.&nbsp; It is alleged that some of these incidents occurred while a chaperone was present, behind the curtain in the consulting room.[9]&nbsp;</p>
<h4><strong>Conclusion</strong></h4>
<p>The current system favours the right of the practitioner to practise while not quite finding a balance on the protection of patients.&nbsp; The review appears, therefore, to be warranted, not just for the protection of patients but also for the protection of practitioners.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/350/f/Photo May 2016.jpg" style="width: 200px; height: 150px; border-width: 1px; border-style: solid; margin: 5px 10px; float: left;" />Joanne Baker </strong>graduated from USQ in April 2016 and is currently studying PLT at College of Law.&nbsp; Her legal career started as an Office Junior in a small law firm in her home town in England.&nbsp; She immigrated to Australia 15 years ago where she continued her legal career progressing, through from Secretary to Law Clerk in various areas of law.&nbsp; She is currently Graduate Lawyer in the Medical Negligence team at Slater &amp; Gordon Lawyers.&nbsp; She has two children who keep her busy outside of work and a love for anything VW, particularly Kombies!<strong>&nbsp;&nbsp;&nbsp;</strong></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<h4><strong>References</strong></h4>
<p>[1] Alexandra Back, &lsquo;Chaperone ordered for Canberra GP accused of &ldquo;grooming&rdquo; female patient&rsquo;, The Canberra Times, 24 August 2016, http://www.canberratimes.com.au/act-news/chaperone-ordered-for-canberra-gp-accused-of-grooming-female-patient-20160823-gqz3tr.html.</p>
<p>[2] Hayley Sorensen, &lsquo;Darwin doctor banned from examining women without supervision&rsquo;, NT News, 25 January 2016, http://www.ntnews.com.au/news/northern-territory/darwin-doctor-banned-from-examining-women-without-supervision/news-story/24a1019ea8f58179545b09ebdd402e96.</p>
<p>[3] Australian Health Practitioner Regulation Agency, Independent Review on Chaperoning, 10 August 2016, http://www.ahpra.gov.au/News/2016-08-10-Independent-review-on-chaperoning.aspx. AHPRA is a regulated body that assists the Medical Board of Australia.</p>
<p>[4] Australian Health Practitioner Regulation Agency, AHPHRA Chaperone Protocol, November 2015.</p>
<p>[5] Ibid.</p>
<p>[6] Ibid.</p>
<p>[7] Australian Health Practitioner Regulation Agency, AHPHRA Chaperone Protocol, November 2015.</p>
<p>[8] Australian Health Practitioner Regulation Agency, Independent Review on Chaperoning, 10 August 2016, http://www.ahpra.gov.au/News/2016-08-10-Independent-review-on-chaperoning.aspx.</p>
<p>[9] Julie Medew, Richard Baker, Nick McKenzie, &lsquo;Patient plans to sue Andrew Churchyard&rsquo;s estate over sexual misconduct&rsquo;, The Age, 2 August 2016, www.theage.com.au/victoria/patient-to-sue-andrew-churchyards-estate-over-sexual-misconduct-20160802-gqj5vq.html.&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/gp-chaperones-is-a-review-warrantedhttps://www.lawyersalliance.com.au/opinion/gp-chaperones-is-a-review-warrantedMon, 21 Nov 2016 00:00:00 +1100Continuing Detention Orders: When courts try to predict the future, we<p>The Turnbull government wants to go where no other democracy dares. Its Criminal Code Amendment (High Risk Terrorist Offenders) Bill, currently being considered by the Parliamentary Joint Committee on Intelligence and Security, will let people convicted of terrorism offences be detained long after their jail terms expire. Speculation about future conduct and secret evidence will be allowed. It is frightening stuff.</p>
<p>Under this Bill, a court will be able to order indefinite preventative detention (in the form of a Continuing Detention Order) if it finds that there is a &#39;high degree of probability&#39;&nbsp;that an individual will commit a terrorist offence. Safeguards include the use of expert evidence and requiring all evidence to be admissible. Dig a little deeper, however, and these safeguards fall away.</p>
<p>The so-called &#39;expert&#39; evidence requirement is a fiction. &#39;Experts&#39; could predict future actions, and assure courts of the basis of their predictions. For expert evidence to be accepted in court, however, there needs to be a recognised field of expertise. There is currently no field of expertise in predicting terrorism. Some say it is developing, but it does not yet exist.</p>
<p>The experts would require tools on which to base their predictions. In jurisdictions where preventative detention is currently allowed for violent and/or sexual offenders, tools based on many years of psychological and psychiatric study are used to predict behaviour. This type of evidence, however, notoriously over-predicts. The United Nations has found that these regimes give rise to arbitrary detention, conflicting with human rights obligations.</p>
<p>How do experts predict future offending when it comes to terrorism? They can&#39;t. No equivalent tools exist.</p>
<p>There is also the issue of &#39;admissible evidence&#39;. This should be a fundamental requirement before depriving someone of their liberty, especially when the detention relates to crimes feared for the future, not committed in the past. The catch is that the person in question has no right to see this evidence, if national security or public interest issues exist. And the rules of evidence to be applied would be the civil standard, rather than the criminal one, so essential protections available to people defending themselves against the state will be absent.</p>
<p>During the joint committee hearing, the practical implications of withholding evidence became clear. Dr David Neal, QC, described a control order matter in which he had acted. A claim for public interest immunity had been made over key evidence: police did not want to disclose their tracking methods. However when the evidence was examined, the basis of the application was mistaken. The tracking device that had allegedly revealed the location of the suspect was actually attached to the police vehicle, not the suspect&#39;s.</p>
<p>The right to be able to examine evidence is fundamental. Without it police mistakes, or worse, could lead to indefinite detention of people who present no risk.</p>
<p>So what protection will these controversial changes provide?</p>
<p>We are told that this law will prevent terrorism. Where an individual threatens to commit a terrorist attack, however, there is no need for a Continuing Detention Order. Making such threats is itself a terrorist act, and can lead to life imprisonment.</p>
<p>This bill would allow orders in much broader circumstances.</p>
<p>If a court accepts that an offence such as recklessly possessing a &#39;thing&#39; that might be connected to a terrorist offence is likely to be committed in the future, for example, a Continuing Detention Order can be organised. The individual does not actually have to intend that a terrorist act ensue. If prosecutors can show recklessness, it is up to the individual to show that there was no intention to facilitate a terrorist act to avoid the order.</p>
<p>This exercise would be farcical. A court would need to consider whether an individual, with an innocent mind and no intention to cause harm, might have been reckless regarding the possibility that a &#39;thing&#39;&nbsp;they possess could be connected with terrorism. Given virtually any &#39;thing&#39;&nbsp;could be so connected, the individual would be required to consider this possibility with every &#39;thing&#39; in their possession. If the court were satisfied that such consideration would not occur, it could make a Continuing Detention Order. It would then be up to the individual to show that no terrorist intent would exist in relation to this hypothetical thing. Anyone could be caught by such judicial crystal-ball gazing.</p>
<p>There is no reason to believe that Continuing Detention Orders will increase safety. Studies of preventative detention for sexual and violent offenders suggest that these schemes have actually antagonised people. Individuals affected have become angry and disaffected, potentially posing an increased risk.</p>
<p>Evidence provided to the joint committee sheds light on the real reason behind this bill. According to Michael Phelan, Deputy AFP Commissioner, control orders are incredibly time and resource intensive, costing upwards of $3 million to $4 million each. Keeping people in prison is easier. An application for a Continuing Detention Order would be quicker than a control order, according to Neil Gaughan, Assistant AFP Commissioner, and there would be much less surveillance required: the individuals are already detained.</p>
<p>Unfortunately for the AFP, a liberal democracy is not founded on what is convenient for police. It is founded on the fundamental right to be free to live our lives as we choose. Any state interference with that freedom must be minimal, and strictly in line with the law. When the law requires courts to engage in predicting the future, we enter a legal twilight zone. As Stuart Clark, president of the Law Council of Australia, said, &quot;At the end of the day, what are we fighting for? Haven&#39;t we lost the argument if we do not maintain a society which strikes an appropriate balance between necessary protection and individual rights and freedoms?&quot;.</p>
<p>&nbsp;</p>
<p>The ALA would like to acknowledge that this article has first been published&nbsp;in <a href="http://www.smh.com.au/comment/continuing-detention-orders-when-courts-try-to-predict-the-future-were-in-a-legal-twilight-zone-20161107-gsjkrs.html" target="_blank"><em>The Sydney Morning Herald</em></a>.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/238/f/Anna Talbot 3 resized to square (1).jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; width: 100px; height: 100px; float: left;" /><br />
Anna Talbot&nbsp;</strong>is the Legal and Policy Adviser at the&nbsp;Australian Lawyers Alliance.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/newsmenu/id/8/f/Greg Barns 100x100px.jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; float: left; width: 100px; height: 100px;" /><br />
Greg Barns&nbsp;</strong>is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance.<strong>&nbsp;</strong></p>
<p>&nbsp;</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/continuing-detention-orders-when-courts-try-to-predict-the-future-werehttps://www.lawyersalliance.com.au/opinion/continuing-detention-orders-when-courts-try-to-predict-the-future-wereTue, 15 Nov 2016 00:00:00 +1100‘Nervous shock’ and the Hillsborough disaster: injustices remain<p>On 15 April 1989, 96 Liverpool FC supporters were crushed to death while attending an FA Cup semi-final at Hillsborough Stadium, Sheffield.&nbsp; Last week, after a two-year hearing, a jury held that the 96 had been &lsquo;unlawfully killed&rsquo;, and that their deaths were directly attributable to the serious failures of the South Yorkshire Police who had been in charge of crowd control at the stadium.</p>
<p>This finding overturned a 1991 finding of &lsquo;accidental death&rsquo;, which had been reached notwithstanding the 1989 preliminary report of Lord Justice Taylor, which had been highly critical of the police&rsquo;s role in the disaster.</p>
<p>Central to last week&rsquo;s finding was the admission in cross-examination by David Duckenfield, the police officer in command on the day, that he had lied when he told the Football Authority on the day of the disaster that drunken, ticket-less Liverpool fans had forced open an exit gate, thereby causing the fatal crush.&nbsp;27 years after the event, Duckenfield admitted that, due to his own incompetence and inexperience, he had ordered the exit gate to be opened.</p>
<p>The finding was a great vindication for the families and friends of the dead who, along with the loss of their loved ones, were themselves victims of an organised cover-up and smear campaign by the South Yorkshire Police.&nbsp;This smear campaign &mdash; aggressively supported by sections of the tabloid press (most infamously, <a href="http://thejusticegap.com/wp-content/uploads/Hillsborough-Sun.jpg" target="_blank"><em>The Sun</em></a>) &mdash; was designed to shift blame for the disaster onto the Liverpool fans and even the dead themselves.</p>
<p>Despite last week&rsquo;s finding, various injustices remain for the family and friends of the Hillsborough victims.&nbsp;One such injustice is the lack of legal recognition for the severe psychiatric injuries that many of them suffered as a result of their seeing and/or hearing about the disaster.&nbsp;At law, this type of psychiatric condition is often called &lsquo;nervous shock&rsquo;, and it is an area where Australian courts have been far more realistic and compassionate than their British counterparts.</p>
<h4><strong>&lsquo;Nervous shock&rsquo; in Britain and Australia</strong></h4>
<p>&lsquo;Nervous shock&rsquo; is a form of psychiatric injury which arises where a person witnesses or becomes aware of a distressing incident or circumstances (for example, someone known to that person being killed or seriously injured).</p>
<p>In <em>Alcock v Chief Constable of South Yorkshire Police</em> [1992] 1 AC 310 (Alcock), family and friends of the Hillsborough victims sued the South Yorkshire Police in negligence for their psychiatric injuries.&nbsp; The plaintiffs had not been present at Hillsborough, rather, they had watched the disaster unfold on television.</p>
<p>The House of Lords Judicial Committee found that the South Yorkshire Police did not owe a duty of care to the plaintiffs, and therefore the claim in negligence had to fail.</p>
<p>It was the House of Lords&rsquo; view that for a &lsquo;nervous shock&rsquo; injury to be recognised at law, the claimant must physically perceive the &lsquo;shocking event&rsquo; with his or her own senses, either in its happening or in the immediate aftermath.&nbsp; The plaintiffs &ndash; who were not physically at Hillsborough &ndash; did not satisfy this requirement.</p>
<p>Additionally, it was held that &lsquo;nervous shock&rsquo; required &lsquo;close ties of love and affection&rsquo; to exist between the claimant and the victim&mdash;defined by the House of Lords&rsquo; as parent/child, spouses and fianc&eacute;s.&nbsp;Other categories such as civil partners, siblings, friends and colleagues were not recognised.</p>
<p>By contrast, since the High Court of Australia&rsquo;s ruling in <em>Jaensch v Coffey</em> [1984] 155 CLR 549, Australian law has held that psychiatric injury may be recognised and compensated in circumstances where the claimant was not physically proximate in time or place to the distressing incident.&nbsp;The mode by which the claimant learns the distressing news (for example, television or telephone) appears to be of limited if any importance under Australian law.</p>
<p>The focus in Australian law is on whether the wrongdoer ought to have reasonably foreseen that a person such as the claimant could suffer a recognised psychiatric injury by reason of the wrongdoing. This explains the less restrictive class of claimants recognised in Australian law&mdash;there is no requirement for &lsquo;close ties of love and affection&rsquo; between the claimant and the victim.</p>
<p>Despite ongoing campaigns for the definition to be broadened, <em>Alcock</em> remains the law in Britain regarding &lsquo;nervous shock&rsquo;.&nbsp;It may be hoped that the events of the past week will provide further impetus to the law reform push to bring British law in this area in line with countries such as Australia.</p>
<p>&nbsp;</p>
<p><strong>David Schwartz </strong>is a Senior Associate at Adviceline Injury Lawyers. He specialises in common law and statutory benefits claims for injured workers. David currently sits on the editorial committee of <em>Precedent</em>, the bi-monthly journal of the Australian Lawyers Alliance.</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/nervous-shock-and-the-hillsborough-disaster-injustices-remainhttps://www.lawyersalliance.com.au/opinion/nervous-shock-and-the-hillsborough-disaster-injustices-remainWed, 09 Nov 2016 00:00:00 +1100Expert reports in comp claims: tips to avoid evidentiary traps P2<p><em>Read part one of Benjamin&#39;s series <a href="https://www.lawyersalliance.com.au/opinion/expert-reports-in-comp-claims-tips-to-avoid-evidentiary-traps-p1" target="_blank"><strong>here</strong></a>.</em></p>
<p><strong>Choose the right expertise</strong></p>
<p>If you are looking for evidence of the cause of the failure of a retaining wall, or of a structural failure, then a structural engineer may be the best expert.</p>
<p>If you are looking for evidence on appropriate work practices or safety equipment in an area of employment or industry, then an ergonomics engineer may be the best expert.</p>
<p>If you are looking for evidence of the cause of failure of plant equipment, a mechanical engineer may be the best expert.</p>
<p>If you are looking for evidence on the nature and extent of a head injury, or otherwise inexplicable neurological or cognitive disturbances, a neurosurgeon, psychiatrist or neuropsychologist may be the best expert. As a side note, do not forget that the ambulance and admitting hospital notes of the Glasgow Coma Scale are important when briefing these experts if the injury is said to arise from sudden impact.</p>
<p>If you are in doubt about which expert to brief, contact the plaintiff&rsquo;s General Practitioner, or if you have one, a friendly GP or specialist who could guide you.</p>
<p><strong>Ask the right questions</strong></p>
<p>What is the evidence you want the expert to be able to comment on?&nbsp; Is it about Australian Standards, good building or another type of work practice?</p>
<p>Think about what the court wants to know from an expert; the information which only an expert can give. This is where the need to focus on the elements of the claim is required.&nbsp;</p>
<p>In a liability case, is foreseeability an issue? If so, can the expert comment on any known literature (or what the putative tortfeasor should have known) at the time of the incident which would have a bearing on that issue. Is causation an issue?&nbsp; Can the expert comment on the mechanism of the incident and the likelihood of it causing the incident, or the injuries? What were the risks involved in the incident and the degree of the risks eventuating? Importantly, what measures could the putative defendant have taken to avoid or reduce those risks?&nbsp; Was there contribution from any other factors, and if so, to what extent?</p>
<p>Experts on quantum often need to assess the full nature and extent of the injuries. This requires consideration of the impact on each element of the claimant&rsquo;s life which may sound in damages. Consider the various heads of damage. They should feature largely in any consideration on instructions sought from time to time. The opinions sought should be focused on the anticipated heads of damage. For instance, how does the injury affect the plaintiff&rsquo;s ability to carry out their employment, noting that the employment requires particular tasks?&nbsp; Identifying with some precision the instructions of the type and nature of the problems in performing particular aspects of the employment is often overlooked, but can be useful to a specialist, especially where there is no occupational therapist&rsquo;s opinion on the matter.</p>
<p>Do not ask for opinions outside the area of expertise of the particular expert. If the expert cannot comment on a particular issue because it is outside their area of expertise, tell them to say so. A candid concession is much better than trying to meet an objection at trial. Besides, the opinion obtained outside the area of expertise has little or no probative value. Do not think it can be slipped past the other side or the court. It is better to think whether the answer to the question is likely to be met with an objection on relevance, value, unsupported speculation or some other reason in advance, so as to obtain the best expert report you can.</p>
<p>Avoid asking for opinions on the ultimate question.&nbsp; For instance, don&rsquo;t ask an ergonomic engineer to given an opinion on the negligence of the employer&rsquo;s system of work.&nbsp; Any such opinion is bound to fall on an objection.</p>
<p><strong>Should you clarify any opinion you do not understand, or any question left unanswered?</strong></p>
<p>Experts are human and often very busy. They sometimes unintentionally overlook questions they are asked.&nbsp; They sometimes misunderstand the question (which is almost always because of how it is asked).&nbsp; Sometimes the answers are not clear, or sometimes they have been answered in an oblique fashion. The latter should be treated with care. There may be a reason the expert has not answered the question directly.&nbsp; A simple phone call or follow up letter may clarify the issue.&nbsp;</p>
<p>Finally, do not leave it until just before the compulsory conference, mediation or trial to clarify these questions.&nbsp;An expert&rsquo;s opinion often forms a central plank on which arguments are based. A well planned case requires time to prepare the best arguments.&nbsp; Cases prepared on the run without sufficient time or effort given to enabling a properly reasoned and conclusive expert opinion risks that evidence not being viewed in its best light, and the shadows created can often lead to problems settling the case or problems with admissibility at trial.&nbsp;<br />
&nbsp;</p>
<p><strong>Benjamin Whitten </strong>is a barrister who practises in commercial, equity and insurance litigation. He has a particular interest in claims involving construction &amp; engineering issues and failures.</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/expert-reports-in-comp-claims-tips-to-avoid-evidentiary-traps-p2https://www.lawyersalliance.com.au/opinion/expert-reports-in-comp-claims-tips-to-avoid-evidentiary-traps-p2Wed, 02 Nov 2016 00:00:00 +1100Expert reports in comp claims: tips to avoid evidentiary traps P1<p>It is trite that the factual assumptions that underpin an expert&rsquo;s report must be proven or otherwise accepted by the court in order for to allow the opinions of the expert to be scrutinised by way of objection or weight, and to stand a chance of being accepted by the court.&nbsp;</p>
<p>The same principle applies whether the expert is deployed as the sole expert engaged on the issue, or as an expert for either claimant or respondent.&nbsp;In compensation claims, this commonly presents itself in the context of medical opinions of the nature and extent of the claimant&rsquo;s injuries.&nbsp;</p>
<p>There are many cases where the factual background to the claimant&rsquo;s medical specialist&rsquo;s opinions is undermined by objective evidence shown to contradict the claimant&rsquo;s version of events. For example, by way of video evidence or, as so often occurs these days, by information posted on social media accounts.&nbsp;</p>
<p>Undermining the factual basis upon which the expert bases their opinion is one of the key elements of successful cross-examination, and if undertaken well, can lead to significant fluctuations on the prospects or the quantum of the claim, or both.</p>
<p>In the preparation of cases either before compulsory conferences, or after, this issue is sometimes overlooked by the parties.&nbsp;This article highlights tips which will assist practitioners&rsquo; in ensuring their expert opinions carry the most weight.</p>
<p><strong>What facts and assumptions does the expert need to consider?&nbsp;</strong></p>
<p>The gathering of facts should not be left solely to the expert. They should form part of the instructing letter, but before doing so ensure the facts are properly tested, where possible, against objective evidence. An accurate record of the factual background which has given rise to the creation of the cause of action is vitally important. Not only does that inform the opinion of the experts, but it also must inform the decision of whether the matter has any prospects of success.&nbsp;Without an accurate, and detailed, examination of that factual background, there is scope for error or overreach. Avoiding error and overreach leads to the best chance of settling a claim at an early stage, but if that is not possible, then an accurate record be invaluable at trial, and it will significantly enhance the prospects of a good outcome.</p>
<p>In order to be accurate, it is important to test everything (of relevance) the client and witnesses tells you to determine areas of inconsistency, or any matter that seems contrary to common sense. How you go about testing the information you are given or that is obtained is different depending on the type of information.&nbsp;</p>
<p>To take a simple example,&nbsp;if the client informs you that the accident happened at 10am on Tuesday, 2 August 2016 while at the premises of the client&rsquo;s employer, while undertaking a task in the course of employment, then this information should be cross-checked with the workers&rsquo; compensation claim forms, any medical certificate, any incident report, any report from a Workplace Health and Safety inspection, available witnesses and the employers time and wage records if necessary in the case of any doubt that the claimant was actually undertaking that work on that day.</p>
<p>Another example is the claimant&rsquo;s complaint that the injury causes certain symptoms which restricts their ability to undertake a particular activity.&nbsp;Often the complaint of restriction needs to be particularised in greater detail in order to identify just what &lsquo;restricted&rsquo; means.&nbsp; Can the action be performed at all?&nbsp;If so, when, where and what are the circumstances where it can and cannot be performed?&nbsp;Be careful to avoid overstating the clients&rsquo; difficulties in instructions to experts, even if the client is adamant.&nbsp;Remember that each party often obtains the other&rsquo;s instructions to experts in the disclosure process.</p>
<p>When briefing the expert, set out the factual background as best you can by reference to objectively ascertained and contemporaneous documents.&nbsp;For instance, if the incident involved a motor vehicle collision, the speed might be relevant to the extent of the claimant&rsquo;s injuries.&nbsp;There may be notes from the investigating police officer of what witnesses said of the speed, but do not rely solely on those notes. Call the witness if possible to confirm those notes. Often contacting witnesses reveals matters of relevance that the officer may not have noted, like a comment made by the defendant at the scene, or the behaviour of the claimant. There may be a report from the police which assesses the speed using the skid marks and point of impact. If a medical expert is engaged to opine the full nature and extent of the injuries complained of by the claimant, speed may be relevant to the extent of the symptoms displayed.&nbsp;For example, it may be relevant to an orthopaedic surgeon when examining a person complaining of severe back pain with radiation down the lower limbs that the incident involved a low impact rear-end collision at a speed of no more than walking pace.&nbsp;</p>
<p>But then it may not be that relevant either. I recall the matter of <em>Ranger v Suncorp</em>[ET1]&nbsp; (the issue involving interrogatories is cited at [1999] 2 Qd R 433) in which I acted as solicitor for the plaintiff. The incident was a relatively low-speed impact where the plaintiff was wedged between a slowly reversing car and a petrol bowser, but sadly the plaintiff nevertheless suffered significant injuries. It was an unusual case. The defendant denied any impact occurred at all and wanted to interrogate the plaintiff. However, both the Supreme Court and the Court of Appeal would not let them.&nbsp;It was important in the prosecution of the case to be sure of the mechanism of the incident and to be sure that the complaints of significant injury and pain were properly tested as the expert opinion depended heavily on them being accepted. The matter settled, but the case shows the importance of ensuring that the evidence the claimant intends to give, or would give if the matter proceeds to a trial, is tested against any available objective criteria.</p>
<p>Engineering expert reports are no different. Identifying the precise mechanism of the injury cannot be overstated. Recently, in <em>Valentine v D &amp; C Masters Painters &amp; Decorators PL </em>[2016] QDC 203 (Valentine&rsquo;s case), the plaintiff&rsquo;s claim was unsuccessful because the court was not satisfied that the door mat on which the plaintiff slipped posed a foreseeable risk of injury. Expert engineering evidence was obtained.&nbsp;Unfortunately, the actual mat was not available for evidence, and the plaintiff did not recall what type of backing it had. But he did know it was on a wooden floor when he slipped on it. The plaintiff was an experienced painter, and he had been engaged over the prior few days painting a residential premises owned by the State. The plaintiff had walked over the mat each day he had attended the premises without issue, until he slipped on the day of the incident.&nbsp;</p>
<p>The first opinion of the engineering expert was not based on any inspection of the premises, or any information given by the occupant. It was based solely on the plaintiff&rsquo;s perception of the type of mat he slipped on. This perception was portrayed in photographs the plaintiff took of some mats he found at Bunnings he thought looked like the mats &lsquo;as being as close as (he) could recall&rsquo;(at [12]).&nbsp;The expert purchased two mats which he thought were similar to the ones in the photographs and tested them. The trouble was, they had fabric or sisal backing.</p>
<p>The occupant had been in the premises for 26 years, and her unchallenged evidence was that she always had rubber backed mats and in all her time living there no-one to her knowledge had slipped on the front door mat including children.</p>
<p>The trial judge considered there was merit in the objection taken by counsel for the employer to the expert opinion as having little or no probative value because it was based on the fabric and sisal mats.&nbsp;Nevertheless, the opinion set out the relevant Australian Standards and interpreted dry floor friction results with a note that a coefficient of friction (COF) value at equal to or less than 0.40 would have a moderate to very low contribution to the risk of slipping when dry.</p>
<p>At a later inspection at the property, the floor was tested, as was the rubber backed mat, with result that produced a COF of 0.36. The judge assessed the risk of slipping as &ldquo;moderate to very low&rdquo;. In cross-examination, the expert conceded that a rubber backed mat would be recommended and present a much lower slip risk than a sisal or fabric backed mat.</p>
<p>This case shows the importance of ensuring the expert is given an accurate account of the factual background.&nbsp;If the plaintiff cannot recall, then investigations may reveal the truth from other sources.&nbsp;In Valentine&rsquo;s case, the judge commented, at [31], that if the plaintiff had noticed the mat, and if he asked the tenant if it was a risk, he would have been told that for two decades no-one had slipped on the mat. The tenant may well have given detailed evidence about the type of mat, and the expert would then have had the best information available to provide the best evidence in the form of an opinion able to be relied upon as being based on established background facts.</p>
<p><em>Check next week&rsquo;s edition of ALAn for <a href="https://www.lawyersalliance.com.au/opinion/expert-reports-in-comp-claims-tips-to-avoid-evidentiary-traps-p2" target="_blank"><strong>part two of Ben Whitten&rsquo;s article</strong></a> and find out how to choose the right expertise and ask the right questions</em>.</p>
<p><strong>Benjamin Whitten </strong>is a barrister who practises in commercial, equity and insurance litigation. He has a particular interest in claims involving construction &amp; engineering issues and failures.</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/expert-reports-in-comp-claims-tips-to-avoid-evidentiary-traps-p1https://www.lawyersalliance.com.au/opinion/expert-reports-in-comp-claims-tips-to-avoid-evidentiary-traps-p1Wed, 26 Oct 2016 00:00:00 +1100Evidence shows crimes committed by our government on Nauru and Manus<p><strong>Evidence of crimes committed&nbsp;by the Turnbull Government on Manus and Nauru is compelling, say&nbsp;Greg Barns&nbsp;and&nbsp;Anna Talbot&nbsp;from the Australian Lawyers Alliance.&nbsp;</strong></p>
<p>IT IS beyond doubt, given what has been said and written about Australia&rsquo;s treatment of asylum seekers on Manus Island and Nauru, that many of these people are being tortured or subjected to cruel, inhuman and degrading treatment.&nbsp;</p>
<p>The latest leaked UNHCR report about Nauru&nbsp;<a href="https://www.theguardian.com/australia-news/2016/oct/11/unhcr-to-urge-australia-to-end-offshore-detention-as-violence-dogs-island-camps" target="_blank">notes&nbsp;that it</a></p>
<blockquote><p><em>&#39;... appears that PTSD and depression have reached epidemic proportions.&#39;&nbsp;</em></p>
</blockquote>
<p>And that&nbsp;the UNHCR</p>
<blockquote><p><em>&#39;...&nbsp;anticipates that mental illness, distress and suicide will continue to escalate in the immediate and foreseeable future.&#39;</em></p>
</blockquote>
<p>The question is, can the perpetrators of this policy of systemic mental and physical abuse be subjected to Australian criminal law?&nbsp;</p>
<p>The&nbsp;<a href="http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/" target="_blank"><em>Commonwealth Criminal Code Act</em></a>&nbsp;contains a number of offences dealing with deliberate ill-treatment. The catch-in relation to many of these offences is that any investigation, let alone prosecution, must be sanctioned by a politically partisan figure, the attorney-general.</p>
<p>First, a word about jurisdiction.&nbsp;Canberra likes to pretend, when it suits it, that it has no responsibility for the thousands of desperate men, women and children it has detained on Nauru and Manus Island.&nbsp;However, the reality is that Australia has a duty of care to asylum seekers in those detention centres. This duty has been confirmed courts in Australia and Papua New Guinea. It was Australia that put these people there, it is Australia that contracts with service providers like Wilson Security and Broadspectrum (and its successors) to run the centres, and it is Australia that pays the bills. In any event, when it comes to crimes against humanity, the arm of Australian law extends beyond our shores.</p>
<p>So, what are the possible breaches of Australian criminal law that the actions and orders of ministers, departmental officials from Immigration and Border Protection and service provider personnel might amount to?</p>
<p>Firstly, there is s268.12 of the&nbsp;<a href="http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html" target="_blank">Criminal Code.</a> See below:</p>
<div>268.12 Crime against humanity -- imprisonment or other severe deprivation of physical liberty</div>
<div>&nbsp;</div>
<div>(1) A person (<em>the<strong> perpetrator</strong></em>) commits an offence if:</div>
<div>&nbsp;</div>
<div>&nbsp;&nbsp;&nbsp;&nbsp; (a) the perpetrator imprisons one or more persons or otherwise severely deprives one or&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; more persons of physical liberty; and</div>
<div>&nbsp;&nbsp;&nbsp;&nbsp; (b) the perpetrator imprisons one or more persons or otherwise severely deprisves one or more persons of physical liberty; and</div>
<div>&nbsp;&nbsp;&nbsp;&nbsp; (c) the perpetrator&#39;s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.</div>
<div>Penalty: Imprisonment for 17 years</div>
<div>&nbsp;</div>
<div>(2) Strict liability applies to paragraph (1)(b)</div>
<p>&nbsp;</p>
<p>That section makes it an offence, punishable by up to 17 years imprisonment, for a person to intentionally arbitrarily deprive a person of their physical liberty in circumstances where the detention is part of a widespread of systematic attack directed against a civilian population.</p>
<p>Asylum seekers and refugees are a civilian population. They are not engaged in any battle, other than the battle to preserve their own lives and to live a life free from persecution.&nbsp;</p>
<p>The incumbent Minister for Immigration Peter Dutton, his predecessor Scott Morrison, and arguably the members of the Abbott and Turnbull cabinets as a whole, have intentionally detained any person who tried to, or succeeded in reaching Australia by boat.&nbsp;Individuals are not charged with any offence and there is no date set for their release.</p>
<p>The vast majority have been found to be refugees. It seems the purpose of this detention is to act as a deterrent for others who might seek our help. This is inherently arbitrary.</p>
<p>The second possible crime is that of torture which is set out in the next section &ndash; s268.13. See below:</p>
<div>268.13 Crime against humanity -- torture</div>
<div>&nbsp;</div>
<div>A person (the perpetrator) commits an offence if:</div>
<div>&nbsp;</div>
<div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) the perpetrator inflicts severe physical or mental pain or suffering&nbsp; upon one or more persons who are in the custody or under the control of the perpetrator; and</div>
<div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and</div>
<div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (c) the perpetrators&#39; conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population</div>
<div>&nbsp;</div>
<div>Penalty: Imprisonment for 25 years.</div>
<p>&nbsp;</p>
<p>It is an offence, punishable by up to 25 years imprisonment, to intentionally inflict upon any person, as part of a widespread or systemic attack directed against a civilian population,&nbsp;<em>&#39;severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the&#39;&nbsp;</em>person charged.</p>
<p>It is clear that people detained on Nauru and Manus Island experience severe mental&nbsp;&ndash;&nbsp;and often physical &ndash;&nbsp;pain. <a href="https://www.theguardian.com/news/series/nauru-files" target="_blank"><em>The&nbsp;Nauru Files</em></a>, released by&nbsp;The Guardian&nbsp;in August this year, presented a clear picture of endemic despair on Nauru. Actual self-harm, including suicide attempts, occur on a regular basis. Threats to self-harm, including killing oneself or ones loved ones, are a weekly occurrence. Children were overrepresented in the reports released. One child cut her own wrist. She was sad because all of her friends were leaving and she did not want to be left in the detention centre without them. Other children have drunk cleaning fluid, refused food and swallowed screws and rocks. Sexual harassment and assault are also commonplace, posing a clear threat to mental and physical wellbeing.</p>
<p>While there has been no equivalent to the Nauru Files for Manus Island, it is clear conditions are just as bad. We regularly learn about asylum seekers being violently bashed by locals. Last week, an asylum seeker had&nbsp;<a href="http://www.smh.com.au/federal-politics/political-news/get-me-off-manus-island-assaulted-somali-refugee-and-aid-workers-plea-for-medical-treatment-20161010-gryno8.html" target="_blank">rocks thrown at his head</a>, causing a deep gash which will leave scarring on his face. He is worried about infection now, a man died of septicaemia in 2014 as a result of a simple infection going untreated and being allowed to fester. Two other men were&nbsp;<a href="http://www.smh.com.au/comment/enough-is-enough-bring-manus-island-detainees-to-australia-20160818-gqvqcb.html" target="_blank">beaten with an iron bar&nbsp;and robbed </a>in August. We only know of that because a human rights lawyer happened to be there on the day.</p>
<p>Ministers, bureaucrats and service providers will argue that they have no intention to knowingly inflict severe physical or mental pain or suffering on this civilian population. While they may not be directly causing the injuries, they are well aware of the harm caused by their operations on these islands. They have been provided with voluminous material from doctors, health professionals&nbsp;and others about the impact that detention on Nauru and Manus Island is having.&nbsp;Yet they continue to do nothing. The very act of detention, in the face of overwhelming evidence of pain and suffering, indicates that torture and ill-treatment is being committed.</p>
<p>Only last week, the UNHCR said that that service providers and government officials simply dismiss the issues of abuse raised as unsubstantiated. When they visited Nauru, they were not surprised that&nbsp;<a href="https://www.thesaturdaypaper.com.au/news/immigration/2016/10/08/leaked-unhcr-report-manus-island-worlds-worst/14758452003831" target="_blank">88 per cent&nbsp;</a>of asylum seekers and refugees were assessed as suffering from depression, anxiety or post-traumatic stress disorders. These are among the highest rates of any population in the world, but predictable given the conditions in which these people live.</p>
<p>There is simply no doubt that there is mounting evidence of a number of historic and continuing&nbsp;prima facie&nbsp;cases of offences against the Commonwealth Criminal Code by ministers of the Australian Government, departmental officials who administer Manus and Nauru and the service providers who run them.&nbsp;The question is:&nbsp;<em>Why isn&rsquo;t the Australian Federal Police doing something about it?</em></p>
<p>Because, one surmises, under section 268.121 of the&nbsp;<em>Criminal Code&nbsp;</em>the attorney-general has to provide his or her consent to proceedings brought against person for allegedly breaching the severe deprivation of liberty or torture provisions.&nbsp;Interestingly, the AFP could arrest, charge bail or remand in custody anyone who they alleged has committed either of these offences before the attorney-general gives consent.&nbsp;But which AFP commissioner would have the courage to do that?</p>
<p>The requirement of consent of the attorney-general is farcical and shows that politicians and bureaucrats are highly unlikely to ever see a court room, no matter how compelling the evidence against them in relation to Manus and Nauru.&nbsp;While, in theory, the attorney-general should be above politics when it comes to exercising consent discretion, it has unfortunately been decades since this nation has had an AG with that quality.</p>
<p>But the bottom line is this:&nbsp;there is serious and compelling evidence that the crime of torture and forcible deprivation of liberty has been, and is, being committed by our government and its service providers.&nbsp;It is shameful that the roadblocks to providing the potential victims with justice are so entrenched.</p>
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<p><strong><img alt="" src="/sb_cache/blog/id/238/f/Anna Talbot 3 resized to square (1).jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; width: 100px; height: 100px; float: left;" /><br />
Anna Talbot&nbsp;</strong>is the Legal and Policy Adviser at the&nbsp;Australian Lawyers Alliance.</p>
<p>&nbsp;</p>
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<p><strong><img alt="" src="/sb_cache/newsmenu/id/8/f/Greg Barns 100x100px.jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; float: left; width: 100px; height: 100px;" /><br />
Greg Barns&nbsp;</strong>is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance.<strong>&nbsp;</strong></p>
<p>The ALA would like to acknowledge that this article has first been published&nbsp;in<a href="https://independentaustralia.net/politics/politics-display/evidence-shows-crimes-committed-by-our-government-on-nauru-and-manus,9590" target="_blank"> Independent Australia</a>.</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/evidence-shows-crimes-committed-by-our-government-on-nauru-and-manushttps://www.lawyersalliance.com.au/opinion/evidence-shows-crimes-committed-by-our-government-on-nauru-and-manusWed, 19 Oct 2016 00:00:00 +1100Cosmetic Surgery: the end of an unregulated medical specialty?<p>In recent years, there has been a dramatic increase in the amount of cosmetic surgery being performed in Australia. Cosmetic surgery is no longer only for the rich and famous; it is becoming more popular and accepted within the community at large. The increase in the availability of cosmetic surgery has led to stiff competition between providers, driving down prices.</p>
<p>With this increase in use, there have been a number of recently reported incidents where patients have suffered adverse reactions during cosmetic surgery procedures or from patients unhappy with the results of their surgery, which highlights the lack of regulation of the industry.</p>
<p>Alarmingly, a British survey last year titled &lsquo;Think Over Before You Make Over&rsquo; revealed that one in four people considering undergoing cosmetic surgery did not check their doctor&rsquo;s qualifications before having the procedure. Dr Tony Kane, president of the Australian Society of Plastic Surgeons, commented that he believes if the same research was undertaken in Australia the statistic would be similar to the British results.</p>
<p>These concerns have been partially addressed by the introduction of guidelines by the Medical Board of Australia that came into effect on 1 October 2016. NSW has gone further still, introducing regulations in June 2016 which deal with the licensing of clinics carrying out cosmetic surgery procedures.</p>
<p>In Australia, anybody with a medical degree can call themselves a cosmetic surgeon and perform surgeries such as breast augmentation, unlike most specialities in the medical field which require numerous years of additional specific training. It is also important to note that in Australia, the term &lsquo;cosmetic surgeon&rsquo; differs from &lsquo;plastic surgeon&rsquo;, as specialist plastic surgeons are required to have extensive surgical education and training including a minimum of 12 years medical and surgical education, with at least 5 years of specialist postgraduate training.</p>
<p>One way some cosmetic surgeons have reduced the cost of certain procedures is by placing patients under conscious sedation, rather than using general anaesthetic. With conscious sedation, the patient is administered medicine to help them relax and to block pain during the procedure, but with the intention that they stay awake. By performing a procedure under conscious sedation, rather than general anaesthetic, doctors are able to perform the surgery in their office, rather than a private hospital or day surgery clinic. Additionally, this service does not have to be provided by a specialist anaesthetic practitioner. The danger with conscious sedation is that the clinic may not be set up or have the expertise to deal with complications and is not subject to the stringent regulations that are required for private hospitals and day surgery facilities.&nbsp;</p>
<p>In March 2016 the NSW Health Care Complaints Commission prepared a report, which detailed their investigation into 33 incidents where patients were given questionable levels of sedation during procedures that were carried out under conscious sedation. Six of these patients suffered potentially life-threatening complications including rapid heartbeat, seizures and cardiac arrest, thought to be due to high doses of anaesthetics.&nbsp;</p>
<p>Following this investigation and report, NSW introduced amendments to the Private Health Facilities Regulations 2010 that now require facilities carrying out certain cosmetic procedures &mdash;including breast augmentation, tummy tucks, liposuction and facial implants&mdash;to comply with the licensing standards that already apply to private hospitals. The facilities have until 3 March 2017 to comply with the standards. &nbsp;</p>
<p>The guidelines that were recently introduced by the Medical Board of Australia are intended to be used by the Board as evidence of what constitutes appropriate professional conduct or practice for the profession. It will also make it easier for people considering cosmetic surgery to determine whether their doctor is complying with accepted practice.</p>
<p>These guidelines do not go as far as the NSW regulations in relation to licensing of facilities. They do however state that in facilities where sedation, anaesthesia and/or analgesia is required, the medical practitioner must ensure there are trained staff, facilities and equipment available to deal with any emergencies, including resuscitation of the patient.&nbsp;</p>
<p>The guidelines also explain what is required for informed consent, outlines additional responsibilities relating to patients under the age of 18, states the requirement for appropriate training, expertise and experience and deals with expectations for advertising and marketing.</p>
<p>The hope is that the guidelines will have a positive impact upon the industry and ensure not only that consumers are better protected, but that they are also able to make well-informed decisions about any procedures they undergo.</p>
<p>It will be interesting to see whether any other states will follow NSW&rsquo;s lead by regulating to ensure major procedures are performed in licenced facilities, but for now, it is clear that any regulation of the lucrative cosmetic surgery industry should provide for a better and safer patient experience.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/463/f/Sarah Vinall - Mellor Olsson Lawyers pic.jpg" style="width: 125px; height: 167px; border-width: 1px; border-style: solid; margin: 5px 10px; float: left;" /></strong></p>
<p><br />
<strong>Sarah Vinall i</strong>s a Senior Associate at Mellor Olsson Lawyers in their Adelaide office, where she has worked for the last ten years. She specialises in personal injury law, in particular medical negligence, motor vehicle accidents and public liability claims. Sarah is a committee member of the South Australian branch of ALA.&nbsp;</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><em><span style="font-size:11px;">The ALA would like to acknowledge that the image for this article is creative commons and was originally sourced&nbsp;from Flickr and can be&nbsp;accessed <a href="https://www.flickr.com/photos/presidenciamx/23883227710/in/photolist-CotMw7-pJcnBs-8mh8fz-2Eippg-eYT1f3-5SUY5F-8LjbG2-7V7d36-aGGLHc-8k4QDm-6hFhUj-j41GgH-3oYCgF-bBc1qG-6gct8D-miAJv-nAHYxa-3xSFkw-9S9u3A-doVCdN-75Xh84-4f968X-75XjUa-6ggnKd-7frzek-7frzon-3TBEi-6j8U8m-D61PR-4gTozQ-2dH5a-CNiD3q-4FdgbL-n5iYda-2SE8fB-4z68Fc-6j4Hwi-oFztB-9S6yXR-pxW67-3jVxRn-4GNfqT-42PMUQ-aGGLGi-4roxXE-8AsoFR-4PH3ps-4z69kD-Ch6Y2z-Ch7gSK" target="_blank">here.</a></span></em></p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/cosmetic-surgery-the-end-of-an-unregulated-medical-specialtyhttps://www.lawyersalliance.com.au/opinion/cosmetic-surgery-the-end-of-an-unregulated-medical-specialtyWed, 12 Oct 2016 00:00:00 +1100Australia - A refugee policy to condemn not replicate<p><strong>Australia asylum seekers face a refugee policy to condemn, not replicate, despite what PM says</strong></p>
<p>At the UN Refugee Summit in NY&nbsp;Australia&rsquo;s Prime Minister, Malcolm Turnbull, stood in front of world leaders and claimed his government&rsquo;s refugee policy was the best in the world. But many people in Australia will tell you that Mr Turnbull&rsquo;s boasting was misplaced.</p>
<p>Australia&rsquo;s policy is based on deterrence, building on 15 straight years of fear mongering and demonization of the world&rsquo;s most vulnerable by Australia&rsquo;s political elite. In 2001, the &lsquo;children overboard&rsquo; affair ushered in a new era of lies, which would come to characterise policy around asylum seekers and refugees. The then-Australian Prime Minister, John Howard, accused asylum seekers of throwing their children off the boat they were on in an effort to manipulate Australian authorities into offering assistance. The asylum seekers were trying to ensure that their children were safe. The boat was sinking beneath them. &nbsp;A few months prior to this disgraceful episode Mr Howard had refused entry into Australian waters of a cargo vessel, the Tampa, which had rescued asylum seekers whose boat was sinking.</p>
<p>We have spent $A9.6 billion over the past three years on our refugee policy. It consists of an immigration detention system that includes two offshore detention centres on the impoverished Pacific Island nation of Nauru and on Manus Island, off the coast of Papua New Guinea, mandatory onshore immigration detention, and turning back asylum seeker boats (usually to countries where the occupants face persecution, torture and even death). UNICEF estimates that Australia spends at least $A400,000 detaining each individual asylum seeker in offshore detention each year. It costs less than half that to detain a single prisoner. Then there is the disastrous deal with Cambodia, where the Australian government handed over $A40 million in aid to that nation in exchange for four, yes four, asylum seekers being resettled there.</p>
<p>What do Australians get for their money? &nbsp;A cache of more than 2000 incident reports known as the Nauru Files was recently released by the Guardian newspaper. It details terrifying levels of despair. Threats of self-harm are reported on a near weekly basis. Actual self-harm, including suicide attempts, are reported nearly as regularly. Sexual assault of children is rife, with numerous reports of guards and others touching young girls. One child described how someone had &lsquo;cut me from under&rsquo;, pointing to the vagina area of a cut out doll to further clarify what had happened to her. Another child reported being handed a sexually-explicit note by a local guard. The note is reproduced in the incident report. In child-like lettering, it invites the recipient to &lsquo;come and kiss my pins&rsquo;; &lsquo;come and gigey xxx&rsquo;; &lsquo;come and kiss my botm&rsquo;.</p>
<p>There have also been deaths. One man died in a riot on Manus Island in February 2014. The inquiry that followed said that the events were eminently foreseeable. Locals entered the centre and assaulted detainees. Non-essential staff fled. Asylum seekers and refugees were on their own, and a 23-year-old asylum seeker lost his life, beaten to death.</p>
<p>Another man detained on Manus Island died of septicaemia in August 2014. A rash on his leg was allowed to fester, in the face of increasingly urgent demands from doctors that he be flown for essential treatment, first to Port Moresby and then to Australia. Resistance and delays on the part of the Department meant that, by the time he finally landed in Brisbane, he was probably already brain dead.</p>
<p>Accounts of rape are terrifying. An epileptic woman was raped in the midst of a seizure on Nauru, becoming pregnant as a result. Rather than respond to such horror with compassion, the Minister for Immigration sought to fly the woman concerned to Papua New Guinea (where abortion is illegal) for the termination that was medically necessary, due to the woman&rsquo;s mental state and epilepsy. Her advocates were required to get a court order earlier this year to stop the Minister from forcing her to undergo the procedure in a country completely unequipped to meet her medical needs.</p>
<p>The Australian Human Rights Commission last year released a report detailing the physical and psychological impact of this ongoing detention on children. No other country had produced such a compelling document on the impact of detention on children. Of course, no other country could. Australia is unique in the lengths it will go to in its &lsquo;world&rsquo;s best&rsquo; asylum seeker deterrence policy.</p>
<p>Some health workers in these facilities have disclosed what they have seen in an attempt to stop the damage and mistreatment.</p>
<p>Dr Peter Young, a former psychiatrist in detention facilities, has given evidence to the Australian Human Rights Commission that detention causes mental illness. He revealed significant levels of mental illness among children in a report he provided to the Department. His phone records were later reviewed by the Australian Federal Police due to suspicions he was sharing confidential information.</p>
<p>Last year, it became illegal under Australian law for any workers in immigration detention facilities to talk about what they had seen. The penalty is now two years in prison. Doctors have said they are concerned about the impact of this law on their ability to care for detainees.</p>
<p>Australia&rsquo;s is not a policy to replicate. It is a policy to condemn.</p>
<p>&nbsp;</p>
<p><strong>Anna Talbot&nbsp;</strong>is the Legal and Policy Adviser at the Australian Lawyers Alliance.</p>
<p><strong>Greg Barns</strong>&nbsp;is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance.&nbsp;</p>
<p>The ALA would like to acknowledge that this article has first been published&nbsp;in <a href="http://www.counterweights.ca/2016/09/australia-asylum-seekers-face-a-refugee-policy-to-condemn-not-replicate-despite-what-pm-says/" target="_blank">Independent Australia</a>&nbsp;and the article image was by&nbsp;Ballarat cartoonist John Ditchburn.</p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
<p>&nbsp;</p>
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https://www.lawyersalliance.com.au/opinion/australia-a-refugee-policy-to-condemn-not-replicatehttps://www.lawyersalliance.com.au/opinion/australia-a-refugee-policy-to-condemn-not-replicateWed, 05 Oct 2016 00:00:00 +1100Traumatising Incident (Workplace) – Employer’s Response Inadequate<p><strong>Worker Left to Care for Assailant after Traumatising Incident in the Workplace&mdash;Employer&rsquo;s Response Inadequate</strong></p>
<h2><span style="font-size:14px;"><em>Greenway v The Corporation of the Synod of the Diocese of Brisbane</em> [2016] QDC 195</span></h2>
<p>The District Court has awarded more than $450,000.00 to a young woman who developed post-traumatic stress disorder during the course of her employment as a residential carer for wayward youths.</p>
<p><strong>The Facts</strong></p>
<p>The plaintiff, 32-year-old Rachel Greenway, was the sole carer on duty on 25 August 2013. She was tasked with caring for a 15-year-old resident who had been identified as having complex support needs. The resident had a history of threatening behaviour and violent conduct and had previously assaulted another residential worker. &nbsp;</p>
<p>At about 7pm, the resident became verbally and physically abusive towards Ms Greenway. He kicked and broke a window and then threatened Ms Greenway with a large shard of glass. He also threatened self-harm. &nbsp;</p>
<p>Ms Greenway de-escalated the situation, disarmed the resident and reported the incident to the night duty manager. She was required to remain alone in the residence with her assailant for the remainder of the night and until conclusion of her shift more than 12 hours later. &nbsp;</p>
<p>Following the events of 25 August 2013, Ms Greenway decompensated.</p>
<p><strong>Issues for Determination </strong></p>
<p>The employer denied that it had breached its duty of care to Ms Greenway or alternatively that any breach was causative of her condition.</p>
<p><strong>Breach of Duty </strong></p>
<p>Ms Greenway alleged the employer breached its duty by either failing to prevent the incident or failing to properly respond to it.&nbsp;</p>
<p>Kingham DCJ was not satisfied Anglicare was negligent for failing to prevent the incident occurring either through refusing the placement of the troublesome resident, requiring a second carer to be on duty or providing additional training to Ms Greenway to deal with these kind of incidents. Its decisions in respect of each of those issues, were found to be reasonable in all of the circumstances.</p>
<p>Kingham DCJ found that the failing of the employer was the way it handled the incident when reported by Ms Greenway.</p>
<p>Ms Greenway alleged there was no adequate check on her welfare by her employer. Despite having two conversations with Ms Greenway on the evening of the incident her team leader did not offer to relieve her, visit the residence or send another worker to support her.</p>
<p>The judge held a reasonable employer in Anglicare&rsquo;s position would have established guidelines for team leaders to support employees who were caring for children with complex or extreme support needs. A reasonable employer would have also trained team leaders in how to assess an employee&rsquo;s welfare in the aftermath of a crisis.</p>
<p>Had that training and guidance been received, the team leader&rsquo;s response to this incident would have likely been very different.</p>
<p><strong>Causation </strong></p>
<p>Having determined that the employer could not reasonably be expected to have avoided the incident, the question of causation turned on whether the inadequate response to the incident, that is requiring Ms Greenway to stay alone with the assailant overnight without any support and without having undertaken any adequate check on her welfare, was a necessary condition for the occurrence of her injury.</p>
<p>The question of causation was informed by the medical evidence of the psychiatrists.</p>
<p>It was common ground that the traumatic incident itself was a major contributor to the occurrence of Ms Greenway&rsquo;s injury.</p>
<p>However, the psychiatrists agreed that Ms Greenway&rsquo;s actions in the immediate aftermath in de-escalating and disarming the resident were evidence of the fact that she had not been so overwhelmed by the incident itself that it was inevitable that she would develop PTSD in response to the incident.&nbsp; They also agreed that staying overnight in the residence with her assailant without support added an additional level of anxiety which would be a contributing factor to the development of PTSD. &nbsp;</p>
<p>That evidence allowed the Court to reach the conclusion that it was more probable than not that Anglicare&rsquo;s breach of duty was a necessary condition for the development of Ms Greenway&rsquo;s injury.</p>
<p><strong>Conclusion </strong></p>
<p>This decision highlights that a plaintiff who is assaulted in the course of employment does not need to prove that the assault itself could have been prevented by reasonable care on the part of the employer to succeed.</p>
<p>Particularly in the case of employees in &lsquo;front line&rsquo; occupations where they are inevitably going to be exposed to some degree of trauma, the enquiry must extend to the actions taken by the employer in managing that trauma.</p>
<p>If the employer&rsquo;s actions fail to properly address and attempt to reduce the impact of that trauma on the employee, it may be sufficient to show that those actions were negligent.</p>
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<p><strong><img alt="" src="/sb_cache/blog/id/326/f/sarah.jpg" style="width: 180px; height: 124px; border-width: 1px; border-style: solid; margin: 5px 10px; float: left;" />Sarah Dreger </strong>is a Senior Lawyer at <a href="http://www.gouldson.com.au" target="_blank">Gouldson Legal</a>, a Queensland personal injury plaintiff litigation firm. Sarah has practised exclusively in personal injury matters since her admission in 2011 and recently achieved her Personal Injuries Specialist Accreditation. Sarah&rsquo;s pro-active and practical approach to her work helps ensure the best possible outcome for her clients.</p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article.&nbsp;</a></strong></p>
<p>&nbsp;</p>
https://www.lawyersalliance.com.au/opinion/traumatising-incident-workplace-employers-response-inadequatehttps://www.lawyersalliance.com.au/opinion/traumatising-incident-workplace-employers-response-inadequateThu, 29 Sep 2016 00:00:00 +1000UN Refugee Summit NY: Turnbull breaks commitments<p>World leaders are meeting in New York this week to talk about migration and refugees. According to the United Nations, we are currently in the midst of the<a href="http://www.unhcr.org/figures-at-a-glance.html" target="_blank"><em> &#39;highest levels of displacement on record&#39;</em></a>. Most of the displaced people who have crossed international borders are refugees.</p>
<p>However, despite what political detractors would have you believe, undermining fundamental principles of refugee law, in the way Australia has done since the late 1990s, is ensuring that the global crisis is made intractable.</p>
<p>The international principles of refugee law, as we currently know it, was a creation of the post-World War II world, when millions of people who were caught in impossibly dangerous situations were on the move. World leaders agreed that there was a need for order to manage this mass movement. They worked together to draft the<a href="http://www.unhcr.org/1951-refugee-convention.html" target="_blank"><em> 1951 Refugee Convention</em></a>, which defined refugees as people who were outside of the country that they usually lived in, and felt they could not return to that country due to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.</p>
<p>The Convention included a commitment not to send such people back to where they have fled from, where they might face persecution or torture: non-refoulement is the term used.</p>
<p>Refugees are people who no longer enjoy the protection of their own government, and the <em>Refugee Convention</em> recognises that they desperately need &nbsp;to be protected by another nation.</p>
<p>Just like the situation following World War II, the refugees on the move today don&rsquo;t have any other choice. They&rsquo;re not moving because they want to &ldquo;invade&rdquo; nations like Australia, as some absurd conspiratorial types would have you believe.&nbsp;They&rsquo;re moving because if they stay where they are, they will die. Or perhaps they will be tortured.</p>
<p>State sovereignty is it the foundation of international law as we currently know it. A sovereign state (or country, or nation, or nation-state, there are a lot of different terms that are more or less used interchangeably) is one that can make its own decisions about what happens within its borders. There is an inherent tension between state sovereignty and international law, especially when it comes to international law seeking to direct or constrain government action. Countries agree to these incursions into their sovereignty only when it suits them. Otherwise, what happens inside borders is no business of others.</p>
<p>Australia, along with over 140 other countries, has agreed to be bound by this<em> Convention </em>and its <em>Protocol</em>. We have agreed that it is fair that people who are not safe where they are living have a right to move somewhere else to build a life&nbsp;and that our sovereignty will not stop them. We have also agreed that people have a right to seek asylum &mdash; that&rsquo;s in the <em>Convention</em> too.</p>
<p>This has not been forced on us by outside forces. We were there at the negotiating table. We helped to create this law. We have all benefited from it.</p>
<p>A few countries have decided not to be bound by these laws &mdash;&nbsp;perhaps because they don&rsquo;t feel that they have the capacity to provide refugees with the security that they so desperately need. While, on the one hand, it would be great if all countries opened their doors to refugees, their choice has to be respected. Countries like India, Indonesia, Malaysia and Pakistan have all decided that they are not in a position to offer refuge to those in need.</p>
<p>While there are refugees in these countries, they are not protected by the <em>Refugee Convention</em>. The fact that a refugee has passed through countries like this does nothing to diminish their claim to refugee status when they reach Australia.</p>
<p>Australia has agreed to be bound by other human rights treaties that complement refugee law. We agreed that torture is illegal in all circumstances&nbsp;and that we would never send anyone to face torture or ill-treatment&nbsp;when we became a party to the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx" target="_blank"><em>Convention against Torture</em></a>.</p>
<p>We agreed not to discriminate on the basis of race, religion or gender &ndash;&nbsp;among other things &ndash;&nbsp;when we became a party to the<a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx" target="_blank"><em> International Covenant on Civil and Political Rights</em></a> and other treaties. No one forced us to sign up to these commitments. We signed them readily because we agreed they were worthy rules for a civilised nation.</p>
<p>It is clear that Australia&rsquo;s current approach breaks the commitments we have given. People are punished when they ask us for help. They are turned around in international waters, sent back to countries where some of them have been tortured or even killed, in direct conflict with our non-refoulement obligations. If they do reach Australia (and none have for quite some time), they are sent to places where a<a href="http://static.guim.co.uk/ni/1425873116713/Mendez-report.pdf" target="_blank"> UN expert</a> has said that the right to be free from torture and ill-treatment is being violated.</p>
<p>Former Prime Minister John Howard&rsquo;s commitment that <a href="http://electionspeeches.moadoph.gov.au/speeches/2001-john-howard" target="_blank"><em>&ldquo;we will decide who comes to this country and the circumstances in which they come&rdquo;</em></a> puts us in direct conflict with the commitment we gave in more humane times&nbsp;to help those in need.</p>
<p>What those fulminating about borders and queues fail to realise is that our sovereignty is actually stronger for the flexibility that the<em> Refugee Convention</em> provides. By agreeing that we will help refugees find safety when they were not safe in their home countries, we allow a little breathing space into our otherwise rigid borders. The fact is that these people must move. All of us would if we were faced with the same circumstances that they flee from. Opening up this gap means that we are in a stronger position to make the decisions John Howard demanded.</p>
<p>Refugee supporters rightly appeal to humanity and kindness in aid of their campaigns. Refugees have had a terrible time&nbsp;and really do deserve to be welcomed. There is, however, also a much more pragmatic reason that we should be generous with refugees, receive those that seek our protection and offer them safety. The foundation of international law &ndash;&nbsp;state sovereignty &ndash;&nbsp;requires the pressure valve that refugee law offers to ensure its otherwise brittle structure stays strong.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/238/f/Anna Talbot 3 resized to square (1).jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; width: 100px; height: 100px; float: left;" /><br />
Anna Talbot&nbsp;</strong>is the Legal and Policy Adviser at the&nbsp;Australian Lawyers Alliance.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/newsmenu/id/8/f/Greg Barns 100x100px.jpg" style="border-width: 1px; border-style: solid; margin-left: 10px; margin-right: 10px; float: left; width: 100px; height: 100px;" /><br />
Greg Barns&nbsp;</strong>is a barrister, spokesperson for the Prison Action and Reform Group Inc and the Australian Lawyers Alliance.<strong>&nbsp;</strong></p>
<p><br />
&nbsp;</p>
<p>The ALA would like to acknowledge that this article has first been published&nbsp;in <a href="https://independentaustralia.net/politics/politics-display/un-refugee-summit-ny-turnbull-breaks-the-commitments-we-have-given,9508#disqus_thread" target="_blank"><em>Independent Australia</em></a>&nbsp;and the article image was found in <a href="http://www.news.com.au/national/politics/malcolm-turnbull-defends-australias-border-protection-policies-at-un-refugee-summit/news-story/59eb75fb4f843d00179456b27b2fb242" target="_blank"><em>News.com.</em></a></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/un-refugee-summit-ny-turnbull-breaks-commitmentshttps://www.lawyersalliance.com.au/opinion/un-refugee-summit-ny-turnbull-breaks-commitmentsTue, 20 Sep 2016 00:00:00 +1000Changing Total and Permanent Disablement (TPD) Definitions<p>Historically, TPD definitions have usually been consistent with the definition of permanent incapacity under r1.03C of the <em>Superannuation Industry (Supervision) Regulations </em>1994 which requires that the member&rsquo;s ill-health render them unlikely to ever engage in gainful employment for which they are reasonably qualified by education, training or experience.</p>
<p>However, insurers are increasingly amending their TPD definitions, because some stakeholders argue that too many claims are being paid out due to &lsquo;generous&rsquo; TPD definitions. Broad definitions have been identified as one (but not the only) reason why the group life insurance industry has been running at a loss since 2013. Unfortunately for members, many superannuation fund trustees are now acquiescing to these changes.</p>
<p>One such change to TPD definitions is the requirement that members be &lsquo;unable&rsquo; or &lsquo;incapable&rsquo;, rather than &lsquo;unlikely&rsquo; to return to employment. Precedents have developed around the use of the word &lsquo;unlikely&rsquo; that plaintiff lawyers rely on to argue that while a member may have some residual work capacity, they are in fact unlikely to return to work because of challenges they would face in the open labour market. Such arguments are often supported by evidence from vocational assessors.</p>
<p>An assessment of whether a member is &lsquo;unable&rsquo; or &lsquo;incapable&rsquo; of returning to work, on the other hand, is arguably a purely hypothetical question of ability or capacity, where such considerations are irrelevant. While a member may have no realistic prospect of returning to work, if they are not able to prove that they are &lsquo;unable&rsquo; or &lsquo;incapable&rsquo; due to their medical condition, they will not succeed in their TPD claim. &nbsp;</p>
<p>Another change to TPD definitions has been the introduction of retraining and rehabilitation clauses. AustralianSuper and MTAA have introduced clauses which allow the insurer to consider any retraining, education or rehabilitation the member undertook after the waiting period expired, or could reasonably undertake in the future, in the assessment of whether the member is TPD.</p>
<p>In line with current precedent, plaintiff lawyers have argued that education, training or experience obtained after the expiry of the waiting period is irrelevant to the consideration of whether a member is TPD, unless it was a short course or a qualification which was already within the member&rsquo;s education, training or experience. However, with these changes, the possibility of further retraining or rehabilitation could mean a member is unable to prove that they are TPD.</p>
<p>While the insurance and superannuation industries claim that this will help members return to work, it remains to be seen how these clauses will work in practice. What is &lsquo;reasonable&rsquo;, given the financial barriers most members (who have been forced to stop work) face? Who is going to pay for the training or rehabilitation? What happens if the cost is greater than the TPD benefit?</p>
<p>In addition to wording changes like &lsquo;unlikely&rsquo; to &lsquo;unable&rsquo; and inserting a retraining and rehabilitation clause, SunSuper has implemented a five-year, graduated claim payout rather than a one-off lump sum payment with a waiting period. This will increase the cost of administering claims due to the longer timeframe. However, insurers say they expect the change will lead to a lower amount of claims being paid out overall. This means that even if a member&rsquo;s medical condition has stabilised, they will have to wait more than five years to receive their total payment.</p>
<p>Further, MTAA have also introduced a clause which requires that the member be receiving regular and ongoing care, which itself requires a doctor to confirm that their medical condition will not improve sufficiently to allow them to return to work in any capacity. That is a much higher hurdle than the TPD definition which only requires a doctor certify that the member is unlikely, unable or incapable of returning to work which is within their education, training or experience.</p>
<p>Premiums for cover within superannuation have increased across the board, meaning that many members are paying large premiums with a low probability that they will actually ever successfully claim their TPD benefits, even if they stop work due to a medical condition.</p>
<p>Superannuation fund trustees who are entrusted with the management of their members&rsquo; entitlements should remember that for many, if not most members of industry funds, their automatic TPD cover through superannuation is their only insurance in the event they have to stop work because of a medical condition. That is particularly the case for members in manual labour roles, or low- or semi-skilled workers, who are unlikely to be able to afford insurance outside of superannuation.</p>
<p>Some superannuation funds such as CBUS have resisted changes on behalf of members, their policy with TAL retaining &lsquo;unlikely&rsquo; in the definition, and omitting any retraining clause. Hopefully other funds will follow suit rather than introducing changes to their TPD definitions to make it more difficult for members.&nbsp;</p>
<p>Otherwise, we expect that as a result of these changes, plaintiff lawyers will soon see increasing challenges for members as they claim under policies with these changes. Insurers are already not subject to any statutory time limit in assessing claims. It would now be expected claims assessment will take even longer, that it will be necessary to obtain more evidence to supports claims, there will be more declined claims, and it will be increasingly necessary for members to engage lawyers.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/316/f/Capture Ashley Matthews.PNG" style="border-width: 1px; border-style: solid; margin: 5px 10px; float: left; width: 150px; height: 159px;" /><br />
<br />
Ashley Matthews </strong>is a lawyer working in financial advice disputes, superannuation and insurance claims for Maurice Blackburn in Sydney. She is passionate about advocating for clients and achieving outcome for them and also improving the regulation of those industries more widely.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<p>Disclaimer:&nbsp;The ALA would like to acknowledge that the image for this article is creative commons and was originally produced by Anjan&nbsp;Chatterjee&nbsp;accessed <a href="https://www.flickr.com/photos/anjan58/7272291392/in/photolist-c5CoSm-6WG2bG-i3AWVk-reQ2cb-qkmGCR-9Y3D7a-7nnru9-bjEmqm-bj7opi-rh4TjJ-bxzfZe-bxzeMg-bxzgjc-qk9qY9-bxzgYR-bxzfsg-bjEbnC-bjEjiW-bxz9XP-bjEhtC-bxz3Vg-bxzd26-bxz9FF-6QmQSE-bxz6Hx-bjEkt7-bxz9uM-bjEi4A-bjEngJ-bxzcLK-bxzbqa-bxz5Gz-bjEnML-bxz8KX-bjEcZs-bxzdUc-bjEfXA-bjEbV9-bjEawm-cGZt2Y-mR9TYp-cGZrMQ-kefia8-cGZCf1-cGZMe3-cGZXeL-bxz39T-8tjiH8-dVp14R-dVuA17" target="_blank">here.</a></p>
<p><span style="font-size:11px;"><em>The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</em></span></p>
<p style="text-align: center;"><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank"><strong>Learn about how you can get involved and contribute an article.&nbsp;</strong></a></p>
https://www.lawyersalliance.com.au/opinion/changing-total-and-permanent-disablement-tpd-definitionshttps://www.lawyersalliance.com.au/opinion/changing-total-and-permanent-disablement-tpd-definitionsThu, 15 Sep 2016 00:00:00 +1000Abortion Decriminalisation (QLD) and International Human Rights P2<p><strong>IHRL AND ABORTION</strong></p>
<p>International human rights law generally takes the position that abortion is an issue of reproductive choice and bodily autonomy for women. The human rights invoked by the issue of abortion include:</p>
<ul><li>The right to life;<a href="#_ftn1" name="_ftnref1" title="">[1]</a></li>
<li>The right to the enjoyment of the highest attainable standard of physical and mental health;<a href="#_ftn2" name="_ftnref2" title="">[2]</a></li>
<li>The right for women to be free from discrimination;<a href="#_ftn3" name="_ftnref3" title="">[3]</a></li>
<li>The right to equality before the law;<a href="#_ftn4" name="_ftnref4" title="">[4]</a></li>
<li>The right to privacy and bodily integrity;<a href="#_ftn5" name="_ftnref5" title="">[5]</a></li>
<li>The right to be free from cruel, inhuman or degrading treatment or punishment;<a href="#_ftn6" name="_ftnref6" title="">[6]</a></li>
<li>The right to found a family;<a href="#_ftn7" name="_ftnref7" title="">[7]</a> and &nbsp;</li>
<li>The right to freedom of thought, conscience and religion.<a href="#_ftn8" name="_ftnref8" title="">[8]</a></li>
</ul>
<p>Denying women the right to access pregnancy termination services violates their rights in many different ways. Decriminalising abortion is not about morally or ethically condoning it. It&#39;s about recognising the dangerous consequences of its criminalisation &ndash; for women, girls and medical practitioners. Criminalising abortion does not decrease abortion rates but merely increases unsafe procedures. The most effective way to reduce unwanted pregnancies is education and affordable and accessible contraception. Furthermore, not all abortions result from unwanted pregnancies. Some very wanted pregnancies can also end in termination for a variety of reasons such as foetal abnormalities and dangers to a pregnant woman&rsquo;s health. Abortion is a medical issue. Approximately 13% of maternal deaths worldwide are attributable to unsafe abortion &ndash; between 68,000 and 78,000 deaths annually.</p>
<p>It is well established in Australian law and that of comparative jurisdiction and international law that human life begins at birth. The UN Human Rights Committee has called on a number of states to review laws prohibiting termination in order to secure the right to life, as a result of the number of preventable deaths caused by unsafe terminations.<a href="#_ftn9" name="_ftnref9" title="">[9]</a> IHRL jurisprudence does not support the view that the right to life or the rights of the child prohibits or is contrary to lawfully performed pregnancy terminations or the ability to access pregnancy termination services.</p>
<p>The prohibition on sex discrimination is reflected in most international human rights treaties; foremost among them the <a href="http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article1"><em>1979 Convention on the Elimination of all Forms of Discrimination Against Women</em> (<strong>CEDAW</strong>)</a>. The Australian government signed CEDAW on 17 July 1980 and subsequently ratified it on 28 July 1983. It prohibits discrimination on the basis of sex, which affects the enjoyment of human rights by women, and recognises a range of rights, including bodily autonomy and reproductive choice.<a href="#_ftn10" name="_ftnref10" title="">[10]</a> Article 3 requires states parties to take appropriate measures to guarantee the enjoyment and exercise of these rights. Article 2(g) requires states to repeal provisions that constitute discrimination against women. The CEDAW Committee has stated that &lsquo;it is discriminatory for a state party to refuse to legally provide for the performance of certain reproductive health services for women&rsquo;.<a href="#_ftn11" name="_ftnref11" title="">[11]</a> The CEDAW Committee has also, in its general recommendations, called on parties to &lsquo;ensure that measures are taken to prevent coercion in regard to fertility and reproductive health, and to ensure that women are not forced to seek unsafe medical procedures such as illegal termination because of lack of appropriate services in regard to fertility control&rsquo;.<a href="#_ftn12" name="_ftnref12" title="">[12]</a></p>
<p>In 2014, the UN Human Rights Commission recommended that states remove all punitive provisions for women seeking pregnancy terminations and permit pregnancy terminations under certain circumstances. In June 2016, the UN Human Rights Committee called on Ireland to compensate a woman who was refused a termination after the foetus was diagnosed with a congenital heart defect, and to remove its ban on pregnancy terminations.<a href="#_ftn13" name="_ftnref13" title="">[13]</a></p>
<p>Denying women the right to access safe and affordable pregnancy termination services violates their fundamental rights. The CEDAW Committee has stated that that forcing women to continue a pregnancy, especially in circumstances of rape or incest, or where there is a threat to the woman&rsquo;s health, violates the right to health, and the right to be free from cruel, inhuman and degrading treatment.<a href="#_ftn14" name="_ftnref14" title="">[14]</a> The consequences of a woman being forced to continue an unwanted pregnancy are also likely to impact on the enjoyment of other economic and social rights, including the right to the highest attainable standard of physical and mental health.<a href="#_ftn15" name="_ftnref15" title="">[15]</a> One of the first actions of the Whitlam government was the signing by Australia of the ICESCR on 18 December 1972.&nbsp;Australia ratified the Covenant via one of the first actions of the Fraser government on 10 December 1975. &nbsp;In its General Comment 14, the ICESCR&rsquo;s supervisory committee has interpreted the right to health as stipulated in ICESCR Article 12 to include &lsquo;the right to control one&rsquo;s health and body, including sexual and reproductive freedom&rsquo; (see <a href="http://www.refworld.org/docid/4538838d0.html">UN Doc E/C.12/2000/4, 11 August 2000</a>).</p>
<p>While practitioners should have a right to refuse to perform a termination on the basis of conscientious objection, the state has an obligation to ensure that such refusals do not amount to a barrier to access. In the <em>International Covenant on Civil and Political Rights </em>(<strong>ICCPR</strong>) to which Australia is a contracting party, the right to freedom of religion in Article 18 is qualified and limited by subsection (3) of that Article, which provides that the right to freedom of religion may be subject to limitations prescribed by law necessary to protect public safety, health or the fundamental rights and freedoms of others. Therefore, compared with the fundamental human right of women and girls to access safe and affordable pregnancy termination, freedom of religion is a more limited and qualified right. Decriminalisation of pregnancy termination is thus consistent with the right to freedom of religion pursuant to Article 18 ICCPR.</p>
<p>The current Queensland laws criminalising pregnancy termination do not reflect modern international community values. The laws are inconsistent with international human rights standards, which recognise the right to reproductive choice, access to safe, affordable healthcare, non-discrimination against women and girls, and equality before the law.</p>
<p><strong>MOVING FORWARD</strong></p>
<p>On 26 May 2016, Pyne&rsquo;s bill was referred for inquiry to the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee. The Committee held public hearings in in Cairns, Emerald and Brisbane and received 1,400 submissions and provided its <a href="http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2016/5516T1337.pdf">final 135-page report</a> to Parliament on 26 August 2016. The Report recommended that the Bill not be passed.</p>
<p>During the inquiry it became apparent that merely removing abortion from the Criminal Code would leave a lacunae of regulation which was unlikely to succeed a conscience vote in parliament.</p>
<p>Therefore, on 17 August 2016, Pyne introduced a second bill into Parliament, the <em>Health (Abortion Law Reform) Amendment Bill </em>2016, which proposes to regulate some of the matters that have been raised during the committee&rsquo;s current inquiry. That is, it proposes an alternative regulatory framework for abortion under the Health Act, including that abortions after 24 weeks&rsquo; gestation would require the agreement of two doctors. The Committee had not commenced its inquiry into the second bill at the time of finalising its report, and advises that its report and recommendation does not include the second bill.</p>
<p>If the second bill is passed, abortion will be regulated like any other medical procedure, under health legislation and by expert medical practitioners.</p>
<p>Abortion reform is also hitting the headlines in NSW. NSW and Queensland are the only remaining Australian states that do not provide for legal abortions. The Queensland parliament is currently considering a bill to decriminalise abortion. Every other state and territory has passed laws that provide legal access to abortion services. NSW Labor MLC, Penny Sharpe, has introduced a bill seeking 150-metre anti-protest and harassment free zones around abortion clinics (<a href="https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3295"><em>Summary Offences Amendment (Safe Access to Reproductive Health Clinics) Bill </em>2016</a>). Meanwhile Greens MP, Mehreen Faruqi,​ has also introduced a bill (<a href="https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=2919"><em>Abortion Law Reform (Miscellaneous Acts Amendment) Bill </em>2016</a>) seeking harassment-free zones and to remove abortion from the NSW Crimes Act.</p>
<p>The current laws in Queensland and NSW are unreasonably archaic, ineffective, and inefficient. They are neither reflective of modern community values nor of internationally recognised human rights principles and should therefore be amended post haste to catch up with the rest of the country, and the world.</p>
<p>&nbsp;</p>
<p><strong><img alt="" src="/sb_cache/blog/id/46/f/Benedict Coyne.jpg" style="width: 100px; height: 141px; border-width: 1px; border-style: solid; margin: 5px 10px; float: left;" />Benedict Coyne </strong>is a human rights lawyer and advocate based in Brisbane at law firm Anderson Fredericks Turner. He is the national President of Australian Lawyers for Human Rights (ALHR).&nbsp;Benedict recently graduated with Distinction (the highest award) from a Master of Studies in International Human Rights Law at the University of Oxford. In 2009 he completed his undergraduate law degree at Southern Cross University and was awarded the university medal for outstanding academic achievement. Benedict is a passionate advocate for human rights both domestically and internationally and has received numerous awards for his work including the Australian Lawyers Alliance/Amnesty International 2014 National Emerging Lawyer of the Year Award and the 2015 Qld Civil Justice Award.&nbsp;He is also a founder of the international business and human rights consulting group &ldquo;Synceritas&rdquo; with a number of his Oxford University colleagues.</p>
<p>&nbsp;</p>
<p>Disclaimer:&nbsp;The ALA would like to acknowledge that the image for this article is creative commons and was originally produced by&nbsp;Fred Jala&nbsp;accessed<a href="http://www.flickr.com/photos/fredjala/241305910/in/photolist-7Lsz4B-48RDaP-7PZhur-njKQJ-npVp4-2nwBS-2cPuRA-6bsSmq-a5WoMG-b42n7k-4V8Hns-39oS6-cbzLqQ-8Hwok-6UvNX9-7LtvpT-bUcBwF-6gRjWS-GSZLp-6gLWAK-oKeX5K-4V8Hq1-aYZJsM-b2MxA8-3nB6p-b2Myha-b2MxRX-b2M3ti-b2M4ut-5e12H3-58MNGK-C1eLK-5mSuyA-aYZJ7x-dxrXfX-8Yjcki-8YneAy-5RQPVt-6hpMpd-LtqKpd-5mSw4q-Aoqw2-39QEFe-2gbrJr-4XHB6J-5FsaCj-qh9vt-EczhnJ-Evu2Xp-DG4Npz" target="_blank"> here.</a></p>
<p><em><span style="font-size:11px;">The views and opinions expressed in these&nbsp;articles are the authors&#39; and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).</span></em></p>
<p style="text-align: center;"><strong><a href="https://www.lawyersalliance.com.au/getinvolved/write-for-us" target="_blank">Learn about how you can get involved and contribute an article.&nbsp;</a></strong></p>
<div>&nbsp;
<hr align="left" size="1" width="33%" />
<div id="ftn1"><p><a href="#_ftnref1" name="_ftn1" title="">[1]</a> Article 6 of the International Covenant on Civil and Political Rights <strong>(ICCPR</strong>).</p>
</div>
<div id="ftn2"><p><a href="#_ftnref2" name="_ftn2" title="">[2]</a> Article 12 of the International Covenant on Economic, Social and Cultural Rights (<strong>ICESCR</strong>).</p>
</div>
<div id="ftn3"><p><a href="#_ftnref3" name="_ftn3" title="">[3]</a> Article 2 ICCPR; Article 2 ICESCR; Articles 1, 2 and 3 of the Convention of the Elimination of all Forms of Discrimination Against Women (<strong>CEDAW</strong>)</p>
</div>
<div id="ftn4"><p><a href="#_ftnref4" name="_ftn4" title="">[4]</a> Articles 14 and 26 ICCPR.</p>
</div>
<div id="ftn5"><p><a href="#_ftnref5" name="_ftn5" title="">[5]</a> Article 17 ICCPR.</p>
</div>
<div id="ftn6"><p><a href="#_ftnref6" name="_ftn6" title="">[6]</a> Article 7 ICCPR.</p>
</div>
<div id="ftn7"><p><a href="#_ftnref7" name="_ftn7" title="">[7]</a> Article 23(2) ICCPR; Article 16(1)(e) CEDAW.</p>
</div>
<div id="ftn8"><p><a href="#_ftnref8" name="_ftn8" title="">[8]</a> Article 18 ICCPR.</p>
</div>
<div id="ftn9"><p><a href="#_ftnref9" name="_ftn9" title="">[9]</a> Concluding Observations on Kenya (2005).</p>
</div>
<div id="ftn10"><p><a href="#_ftnref10" name="_ftn10" title="">[10]</a> Articles 12, 14(b), and 16(1)(e).</p>
</div>
<div id="ftn11"><p><a href="#_ftnref11" name="_ftn11" title="">[11]</a> General Recommendation 24 [1999] on women and health, para 11.</p>
</div>
<div id="ftn12"><p><a href="#_ftnref12" name="_ftn12" title="">[12]</a> Committee on the Elimination of Discrimination against Women: Zambia UN Doc A/49/38 (1994).</p>
</div>
<div id="ftn13"><p><a href="#_ftnref13" name="_ftn13" title="">[13]</a> United Nations Office of the High Commissioner of Human Rights, &lsquo;Press release: Ireland termination ban<br />
subjected woman to suffering and discrimination &ndash; UN experts&rsquo;, 9 June 2016. See press release<br />
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20077&amp;LangID=E and findings<br />
of the Committee<br />
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/116/D/2324/20<br />
13&amp;Lang=en.</p>
</div>
<div id="ftn14"><p><a href="#_ftnref14" name="_ftn14" title="">[14]</a> <a href="http://www.ohchr.org/Documents/HRBodies/CEDAW/Jurisprudence/CEDAW.C.50.D.22.2009_en.pdf"><em>LC v. Peru</em> CEDAW/C/50/D22/2009</a>, at [8.15].</p>
</div>
<div id="ftn15"><p><a href="#_ftnref15" name="_ftn15" title="">[15]</a> Article 12 ICESCR.</p>
</div>
</div>
https://www.lawyersalliance.com.au/opinion/abortion-decriminalisation-qld-and-international-human-rights-p2https://www.lawyersalliance.com.au/opinion/abortion-decriminalisation-qld-and-international-human-rights-p2Thu, 08 Sep 2016 00:00:00 +1000 Abortion Decriminalisation (QLD) and International Human Rights P1 <p>On 10 May 2016, former ALP and now independent Cairns MP, Rob Pyne, introduced a private member&rsquo;s bill into Queensland parliament to decriminalise abortion. Abortion and its facilitation, assistance and procurement have been criminal acts under Queensland law since 1899. Haven&rsquo;t social and community standards changed in all that time? Well, &ldquo;yes&rdquo; and &ldquo;no&rdquo;.</p>
<p>Currently, s224 of the Criminal Code Act of 1899 entitled &lsquo;Attempts to Procure Abortion&rsquo; provides:</p>
<blockquote><p style="margin-left:36.0pt;">&lsquo;Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.&rsquo;</p>
</blockquote>
<p>Section 225 makes it a crime for a woman to self-administer an abortion, or to allow an abortion to be performed upon her; s226 prohibits the provision or supply of anything intended to be used to procure a miscarriage. Pyne&rsquo;s bill requires the repeal of these three sections. At a rally before Parliament House on 10 May 2016, co-hosted by Australian Lawyers for Human Rights (ALHR), Mr Pyne stated: &quot;It&#39;s not 1899, abortion should not be a crime. The world is changing very quickly and unfortunately our politicians aren&#39;t.&rdquo;</p>
<p>Section 282 contains a defence for practitioners, where a surgical operation or medical treatment is provided in good faith and with reasonable care and skill for the patient&rsquo;s benefit or to preserve the mother&rsquo;s life. This defence was expanded in 2010 following the unsuccessful prosecution of a young Cairns couple in <em>R v Leach and Brennan</em>. Police alleged that the couple arranged for a relative to send a supply of the drugs misoprostol and mifepristone, used in medical abortions, to Australia from the Ukraine. The jury retired for less than an hour before returning not guilty verdicts for both defendants. As a result of this case the government expanded the defence in s282 to include medical abortions as well as surgical abortions.&nbsp;</p>
<p>The reality is that women are able to access pregnancy terminations in about 17 private clinics in South East Queensland. There is one public clinic that performs such services without court sanction in Cairns. However, rural and poor women are significantly marginalised by the existing laws. Mr Pyne was mobilised to act after <a href="https://www.theguardian.com/australia-news/2016/apr/27/girl-aged-12-forced-to-wait-weeks-for-australian-court-to-approve-abortion">a 12-year-old Rockhampton girl was forced to go to the Supreme Court to get permission to have an abortion</a> in April this year. Under Queensland&a